IN THE IOWA SUPREME COURT ELECTRONICALLY FILED APR 18, 2018 CLERK OF SUPREME COURT NO. 17-1458 THE CARROLL AIRPORT COMMISSION (OPERATING THE ARTHUR N. NEU MUNICIPAL AIRPORT), Plaintiffs/Appellees, VS. LOREN W. DANNER and PAN DANNER, Defendants/Appellants APPEAL FROM THE IOWA DISTRICT COURT IN AND FOR CARROLL COUNTY, IOWA Case No. EQCV039422 THE HONORABLE WILLIAM C. OSTLUND REPLY BRIEF OF APPELLANTS LOREN W. DANNER AND PAN DANNER STEVEN HAMILTON Hamilton Law Firm, P.C. P.O. Box 188 606 Ontario Street Storm Lake, Iowa 50588 (712) 732-2842 (712) 732-6202 (FAX) steve@hamiltonlawfirmpc.com ATTORNEY FOR APPELLANTS
TABLE OF CONTENTS Table of Contents... 2 Table of Authorities... 3 ARGUMENTS I. BECAUSE THE TRIAL COURT HAD EXPRESSLY RULED PRIOR TO THE COMMENCEMENT OF THIS TRIAL, THAT THE JURY DEMAND OF DEFENDANT WOULD BE STRICKEN, AND BECAUSE INJUNCTIVE RELIEF WAS SOUGHT BY PLAINTIFF, THIS WAS AN EQUITY MATTER, NOT A LAW ACTION... 6 II. A NUMBER OF COURT DECISIONS SUPPORT THAT THE FAA DETERMINATION OF HAZARD/NO HAZARD PREEMPTS LOCAL STATUTES AND ORDINANCES... 7 III. COUNSEL FOR APPELLEE MISREADS THE EFFECT OF THE CODE OF FEDERAL REGULATIONS IN CLAIMING THAT THE NO HAZARD DETERMINATION IN THIS MATTER HAS EXPIRED... 11 Conclusion... 12 Certificate of Filing... 13 Certificate of Service... 14 Certificate of Compliance... 14 2
TABLE OF AUTHORITIES Cases: Abdullah v. American Airlines, Inc., 181 F.3d. 363 (3d. Cir. 1999)... 10 Air Line Pilots Ass n v. Quesada, 276 F.2d, 892 (2d. Cr. 1960)... 10 Big Stone Broadcasting, Inc. v. Lindbloom, 161 F. Supp. 1009 (D.C. S.D., Northern Division, 2001)... 7,8,9,10,11 Burbank-Glendale-Pasadena Airport Authority v. City of Los Angeles, 979 F.2d. 1338 (9 th Cir. 1992)... 10 Clay County v. Pub. Employment Relations Bd., 784 N.W.2d 1 (Iowa 2010)... 12 East Oaks Development Inc. v. Iowa Dept of Transportation, 603 N.W.2d. 566 (Iowa 1999)... 6 Fidelity Fed. Savs. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153, 102 S. Ct. 3014, 3022, 73 L. Ed. 2d 664 (1982)... 8 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 143, 83 S. Ct. 1210, 1218, 10 L. Ed. 2d 248 (1963)... 8 French v. Pan Am Express Inc., 869 F.2d 1 (1 st Cir. 1989)... 10 Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404, 85 L. Ed. 581 (1941)... 8 IBP, Inc. v. Harker, 633 N.W.2d 322 (Iowa 2001)... 12 Incorporated City of Denison v. Clabaugh, 306 N.W.2d 748 (Iowa 1981)... 6 Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S. Ct. 2031, 119 L. Ed. 2d 157 (199)... 8 Price v. Charter Township of Fenton, 909 F.Supp. 678 (N.D.N.Y., 1989)... 10 State v. Gonzalez, 718 N.W.2d 304 (Iowa 2006)... 12 State ex rel. Miller v. Midwest Pork LC, 625 N.W.2d. 694 (S. Ct. 2001)... 6 Statutes: 49 U.S.C. 1301... 8,9 49 U.S.C. 44718(a)(1)&(2)... 9 Other Authorities: 14 C.F.R. 77.31... 10 14 C.F.R. 77.33... 11 14 C.F.R. 77.35... 12 3
ARGUMENT I BECAUSE THE TRIAL COURT HAD EXPRESSLY RULED PRIOR TO THE COMMENCEMENT OF THIS TRIAL, THAT THE JURY DEMAND OF DEFENDANT WOULD BE STRICKEN, AND BECAUSE INJUNCTIVE RELIEF WAS SOUGHT BY PLAINTIFF, THIS WAS AN EQUITY MATTER, NOT A LAW ACTION. Cases: East Oaks Development Inc. v. Iowa Dept of Transportation, 603 N.W.2d. 566 (Iowa 1999) Incorporated City of Denison v. Clabaugh, 306 N.W.2d 748 (Iowa 1981) State ex rel. Miller v. Midwest Pork LC, 625 N.W.2d. 694 (S. Ct. 2001) ARGUMENT II A NUMBER OF COURT DECISIONS SUPPORT THAT THE FAA DETERMINATION OF HAZARD/NO HAZARD PREEMPTS LOCAL STATUTES AND ORDINANCES. Cases: Abdullah v. American Airlines, Inc., 181 F.3d. 363 (3d. Cir. 1999) Air Line Pilots Ass n v. Quesada, 276 F.2d, 892 (2d. Cr. 1960) Big Stone Broadcasting, Inc. v. Lindbloom, 161 F. Supp. 1009 (D.C. S.D., Northern Division, 2001) Burbank-Glendale-Pasadena Airport Authority v. City of Los Angeles, 979 F.2d. 1338 (9th Cir. 1992) Fidelity Fed. Savs. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153, 102 S. Ct. 3014, 3022, 73 L. Ed. 2d 664 (1982) Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 143, 83 S. Ct. 1210, 1218, 10 L. Ed. 2d 248 (1963) French v. Pan Am Express Inc., 869 F.2d 1 (1st Cir. 1989) Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404, 85 L. Ed. 581 (1941) Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992) Price v. Charter Township of Fenton, 909 F.Supp. 678 (N.D.N.Y., 1989) 4
Statutes: 49 U.S.C. 1301 49 U.S.C. 44718(a)(1)&(2) Other Authorities: 14 C.F.R. 77.31 ARGUMENT III COUNSEL FOR APPELLEE MISREADS THE EFFECT OF THE CODE OF FEDERAL REGULATIONS IN CLAIMING THAT THE NO HAZARD DETERINATION IN THIS MATTER HAS EXPIRED. Cases: Clay County v. Pub. Employment Relations Bd., 784 N.W.2d 1 (Iowa 2010) IBP, Inc. v. Harker, 633 N.W.2d 322 (Iowa 2001) State v. Gonzalez, 718 N.W.2d 304 (Iowa 2006). Other: 14 C.F.R. 77.33 14 C.F.R. 77.35 5
ARGUMENT I BECAUSE THE TRIAL COURT HAD EXPRESSLY RULED PRIOR TO THE COMMENCEMENT OF THIS TRIAL, THAT THE JURY DEMAND OF DEFENDANT WOULD BE STRICKEN, AND BECAUSE INJUNCTIVE RELIEF WAS SOUGHT BY PLAINTIFF, THIS WAS AN EQUITY MATTER, NOT A LAW ACTION. In her brief, counsel for the Appellee argues that the trial of this matter was at law because the Court ruled on objections and because of that, the findings have the effect of a jury verdict. This ignores the fact of a specific motion filed by Plaintiff to strike the jury demand. (App. Pp. 26-27). In addition, the very nature of the case, a request for injunctive relief, made this an equitable matter. Incorporated City of Denison v. Clabaugh, 306 N.W.2d 748 (Iowa 1981). See also State ex rel. Miller v. Midwest Pork LC, 625 N.W.2d. 694 (S. Ct. 2001), holding a request for injunctive relief is an equitable matter and the Supreme Court review is de novo. East Oaks Development Inc. v. Iowa Dept of Transportation, 603 N.W.2d. 566 (Iowa 1999). Therefore this matter is equitable requiring de novo review. 6
ARGUMENT II A NUMBER OF COURT DECISIONS SUPPORT THAT THE FAA DETERMINATION OF HAZARD/NO HAZARD PREEMPTS LOCAL STATUTES AND ORDINANCES. The Appellee cites cases claiming they support the proposition that a local authority may establish its rules and regulations in the face of a Hazard or No Hazard determination by the F.A.A. A case with an extended discussion of this matter is Big Stone Broadcasting, Inc. v. Lindbloom, 161 F. Supp. 1009 (D.Ct. S.D., Northern Division 2001). There the F.A.A. had completed its determination of the impact that a proposed radio broadcast tower would have on existing and planned visual flight rules (VFR) operations and procedures. It determined there was not enough VFR traffic such that the proposed structure would have an impact on air traffic and construction merited a no hazard determination. When Big Stone Broadcasting proceeded through a South Dakota board charged with determination of flight safety matters, its construction request was denied. The SDAC board claimed that minimum altitudes prescribed by it were for the purpose of providing a safe harbor for pilots of small private aircraft, ill equipped for flying in bad weather, so they could descend to an 7
altitude low enough to see the ground and follow highways to a suitable landing location. Big Stone Broadcasting claimed preemption by the Federal Aviation Act of 1958, 49 U.S.C. 1301, et seq., and the accompanying federal regulations, 14 C.F.R. 77. That case starts with the proposition that the doctrine of preemption is based on the Supremacy Clause of the Constitution, which provides that [t]he Constitution and Laws of the United States which shall be made in Pursuance thereof...shall be the supreme Law of the Land. Big Stone, 161 F. Supp. @ 1014. It goes on to recite that there are four types of preemption, (1) "express preemption," resulting from an express Congressional directive ousting state law (Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992)); (2) "implied preemption," resulting from an inference that Congress intended to oust state law in order to achieve its objective (Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404, 85 L. Ed. 581 (1941)); (3) "conflict preemption," resulting from the operation of the Supremacy Clause when federal and state law actually conflict, even when Congress says nothing about it (Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 143, 83 S. Ct. 1210, 1218, 10 L. Ed. 2d 248 (1963)); and (4) "field preemption," resulting from a determination that Congress intended to remove an entire area from state regulatory authority (Fidelity Fed. Savs. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153, 102 S. Ct. 3014, 3022, 73 L. Ed. 2d 664 (1982)). 8
The Big Stone Court went on to explain that the Federal Aviation Act of 1958, 49 U.S.C. 1301, states that the United States Government has exclusive sovereignty of [the] airspace of the United States. It imposes the duty to regulate (A) navigating, protecting and identifying aircraft; (B) protecting individuals and property on the ground; (C) using the navigable airspace efficiently; and (D) preventing collision between aircraft, between aircraft and land and water vehicles, and between aircraft and airborne objects. It recognizes the threat that tall structures can pose to air safety, directing that the FAA: shall require a person to give adequate public notice, in the form and way the Secretary prescribes, of the construction, alteration, establishment, or expansion, or the proposed construction, alteration, establishment, or expansion, of a structure... when the notice will promote (1) safety in air commerce; and (2) the efficient use and preservation of the navigable airspace... 49 U.S.C. 44718(a)(1)&(2). If the FAA determines that construction could be a threat to the navigable air space, the Act demands an aeronautical study to decide the extent of any adverse impact on the safe and efficient use of the airspace. In doing so the FAA is to consider, (A) the impact on arrival, departure, and en route procedures for aircraft operating under visual flight rules; (B) the impact on arrival, departure and en route procedures for aircraft 9
operating under instrument flight rules; (C) the impact on existing public-use airports and aeronautical facilities; (D) the impact on planned public-use airports and aeronautical facilities; and (E) the cumulative impact resulting from the proposed construction or alteration of a structure when combined with the impact of other existing or proposed structures. See also 14 C.F.R. 77.31. After this discussion, the Big Stone court concluded: From the above examination and the undisputed facts in this case, it is clear to this court that Congress intended to remove the field of air space management, at least as to radio broadcast towers, from state regulatory authority. Big Stone, 161 F. Supp. @ 1016. This Court goes on to cite Air Line Pilots Ass n v. Quesada, 276 F.2d 892 (2d. Cir. 1960) as support for preemption. Similarly, it cites Abdullah v. American Airlines, Inc., 181 F.3d 363 (3rd Cir. 1999) for preemption. Big Stone cites other cases in support of its decision of preemption by the FAA. Among these are Burbank-Glendale- Pasadena Airport Authority v. City of Los Angeles, 979 F.2d 1338 (9th Cir. 1992) for the ruling that a regulation conditioning construction on city approval of placement of runways was preempted. French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989) holds pilot conduct regulations are a matter of preempted federal law. Price v. Charter Township of Fenton, 909 F. Supp. 678 (E.D.Mich.1995). Finally, the Court made plain its position. 10
As this court has independently concluded that the Act preempts the field of air traffic and safety under the facts of this case, the FAA's determination is, therefore, reasonable and not contrary to clearly expressed congressional intent. It is a reasonable conclusion, given the broad statutory framework of the Act, and is in harmony with the Supreme Court's City of Burbank decision. Accordingly, this court will accept the FAA's reasonable interpretation and will defer to its conclusion that SDAC's actions in this case have been preempted. As discussed above, the court would arrive at such a conclusion regardless of the FAA's position, but given the FAA's interpretation, the court is confident that Congress did not intend to give the states veto power over FAA no hazard determinations. Big Stone, 161 F. Supp. @ 1020. ARGUMENT III COUNSEL FOR APPELLEE MISREADS THE EFFECT OF THE CODE OF FEDERAL REGULATIONS IN CLAIMING THAT THE NO HAZARD DETERMINATION IN THIS MATTER HAS EXPIRED. Counsel for Appellee claims the no hazard determination (App. Pp. 154-155) in this matter has somehow expired. If one reads 14 CFR 77.33, it provides, (b) Unless extended, revised, or terminated, each Determination of No Hazard to Air Navigation issued under this subpart expires 18 months after the effective date of the determination, or on the date the proposed construction or alteration is abandoned, whichever is 11
earlier. This part should be read with 14 CFR 77.35 (b) A Determination of No Hazard to Air Navigation issued for those construction or alteration proposals not requiring an FCC construction permit may be extended by the FAA one time for a period not to exceed 18 months. Clearly, it does not contemplate that every 18 months, a new permit is to be requested. It simply is a means of assuring timely pursuit of construction after a No Hazard is issued. The reading imposed by Appellee would mean the FAA is looking at a reapplication every 18 months in perpetuity from every tower constructed. Such a reading is nonsensical. Statutes are given a reasonable interpretation. IBP, Inc. v. Harker, 633 N.W.2d 322 (Iowa 2001); Clay County v. Pub. Employment Relations Bd., 784 N.W.2d 1 (Iowa 2010); State v. Gonzalez, 718 N.W.2d 304 (Iowa 2006). Appellee s interpretation is not reasonable. CONCLUSION Appellant has demonstrated that the grain leg construction is not a hazard as per the FAA determination of no hazard. Its continued existence is found to be permissible as not a hazard to arriving, departing and en route aircraft. (There are no other aircraft operations other than taxiing on the ground.) 12
Consequently, there is a direct conflict with the interpretation of the Arthur Neu Airport Commission and the Trial Court. Such interpretation is subject to the preemption by the FAA. Respectfully submitted, /s/ STEVE HAMILTON, AT0003128 HAMILTON LAW FIRM, P.C. P.O. BOX 188 606 ONTARIO STREET STORM LAKE, IOWA 50588 712-732-2842 712-732-6202 (FAX) steve@hamiltonlawfirmpc.com ATTORNEY FOR APPELLANTS CERTIFICATE OF FILING I, Steve Hamilton, hereby certify that I have filed the foregoing Reply Brief of Appellants with the Clerk of the Supreme Court of Iowa through the ECF/EDMS System on the 11th day of April, 2018. /s/ STEVE HAMILTON, AT0003128 ATTORNEY FOR APPELLANTS 13
CERTIFICATE OF SERVICE I, Steve Hamilton, hereby certify that on this same date, I served the attached Reply Brief of Appellants through the ECF/EDMS System on the following: Ms. Gina C Badding Mr. Jeffrey R. Minnich 721 North Main Street P.O. Box 367 Carroll, Iowa 51401 gina@nmcnlaw.com jeff@nmcnlaw.com ATTORNEY FOR DEFENDANTS/APPELLANTS /s/ STEVE HAMILTON, AT0003128 ATTORNEY FOR APPELLANTS CERTIFICATE OF COMPLIANCE This brief complies with the typeface requirements and type-volume limitation of Iowa Rs.App.P. 6.903(1)(d) and 6.903(1)(g)(1) or (2) because: This brief has been prepared in a monospaced typeface using Courier New in 12 characters per inch and contains 203 number of lines of text, excluding the parts of the brief exempted by Iowa R.App.P.6.903(1)(g)(2). /s/ STEVE HAMILTON, AT0003128 ATTORNEY FOR APPELLANTS 14