A California Appellate Court Puts a Fence Around Federal Preemption of Airport Safety Standards

On March 20, 2012, in a far reaching opinion, the California Appellate Court for the Second District incurred into the territory usually occupied by the Federal Courts of Appeals, by holding that Federal Aviation Administration (“FAA”) safety standards, published in FAA Advisory Circular 150/5300-13 (“Advisory Circular”) do not preempt state tort law on the standard of care applicable to utilization of an airport’s “Runway Protection Zone” (“RPZ”). 

The case, Sierra Pacific Holdings, Inc. v. County of Ventura, 2012 WL 920322 (Cal.App.2 Dist.)), concerns damage to an aircraft owned by Sierra Pacific Holdings, Inc. (“Sierra”), allegedly caused by a barrier erected within the RPZ at Camarillo Municipal Airport.  The airport, owned and operated by Ventura County (“County”), erected the barrier for the apparent purpose of preventing runway incursions by police vehicles leasing space in part of the RPZ at the airport.  The trial court upheld the County’s motion in limine to exclude evidence of state safety standards relating to “airport design and construction,” on the ground that Federal standards in the Advisory Circular preempt state tort law on the standard of care.  The trial court’s holding was based on the Federal government’s “implied preemption” of safety standards at airports, and, thus, the foreclosure of Sierra’s negligence action based on a dangerous condition of public property under state tort law.  Cal. Gov. Code § 835.  The Appellate Court reversed on the ground that “Congress has not enacted an express preemption provision for FAA safety standards” and, thus, if preemption exists, it must be implied.  The Appellate Court’s decision is flawed for at least two reasons. 
 

First, the Court ignored an explicit statement of Congressional purpose to preempt state safety standards set forth in 49 U.S.C. § 40103.  In that section, Congress stated unequivocally that “the United States government has exclusive sovereignty of airspace of the United States,” § 40103(a)(1).  Congress delegated that sovereignty to the FAA Administrator, including the right to “prescribe air traffic regulations on the flight of aircraft,” § 40103(b)(2), which are required to include traffic regulations “protecting people and property on the ground” § 40103(b)(2)(B), and, most notably, “preventing collisions between aircraft and land or water vehicles . . .,” § 40103(b)(2)(D) [emphasis added].  As the barrier at issue was erected by the County to exclude vehicles from the RPZ and runway, and, thus, “prevent collision between aircraft and land . . . vehicles” using the runway and/or RPZ, its regulation falls directly within the Federal government’s express preemptive power under § 40103. 

Second, even if for argument’s sake, an implied preemption analysis were required, the Appellate Court misconstrued the scope of Advisory Circular 150/5300-13.  Relying on a portion of the Advisory Circular’s introduction (“[U]se of this AC is mandatory for all projects funded with federal grant monies through the Airport Improvement Program (AIP) and with revenue from the Passenger Facility Charges (PFC) Program.”  Advisory Circular, Introduction, § 3), the Court found that the Advisory Circular only becomes mandatory where Federal funding is accepted for the specific project at issue in the litigation, here the barrier allegedly causing the damage.

The Court failed to recognize, however, that the RPZ and associated safety surfaces were Federally funded with AIP and/or PFCs, and, consequently, are safety surfaces to which the Advisory Circular’s standards apply.  The barrier, far from being a project eligible for Federal funding, is precisely the sort of incursion meant to be excluded by the statute and associated regulations.  Thus, the Advisory Circular is mandatory with respect to the prevention of safety hazards within and upon the RPZ, and, under the Court’s reasoning, should preempt state law with respect to those safety standards. 

In short, and despite its holding, the approach taken by the 2nd District Appellate Court leaves open the question of whether the preemption provision of Federal Aviation Act § 40103 governing the scope of FAA jurisdiction over operation of aircraft and associated airport safety facilities expressly or impliedly preempts state tort law challenges.