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Oct
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2023
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Posted 187 days ago ago by Admin
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We all consider ourselves to be professional pilots and as such, we study and memorize everything we can about how we conduct our daily operations, to include the National Airspace System. We use the charts in the AIM, VFR Sectionals and Terminal Area Charts, and tablets with navigation applications. We refer to 14 CFR § 91.126-135. We check—and double check—the weather so we can remain compliant with 14 CFR § 91.155. VFR, IFR, GPS/WAAS, ATC - it all blends into this magnificent (and admittedly complex) system.
But where did all this come from?
Part of it began during WWII. Thomas Causby (and his flock of chickens) owned a parcel of land about a half mile from Lindley Field in Greensboro, North Carolina. The United States government, via what was then the Department of the Army, used Lindley Field for training bomber and fighter pilots. And they used it a lot. So much in fact, that quite a few (over 150) of Mr. Causby’s chickens died due to the noise and vibrations from the constant takeoffs and landings. The location of Mr. Causby’s property placed the landing and departing aircraft approximately 85 feet over the farm (and only 20 feet above the farm's highest object). Mr. Causby filed an inverse condemnation lawsuit against the government for damages, claiming that the airport’s activity had cost him his business and that the United States had “taken” without compensation his rightful property from him. He claimed that this was a clear violation of the Fifth Amendment of the Constitution.
Wait. The Fifth Amendment? The one that protects us from answering questions that may incriminate us in a criminal matter? That Fifth Amendment?
Yes. The Fifth Amendment was created to provide citizens with certain rights and protections, such as protection from self-incrimination, the right to due process, the right to a Grand Jury (for felony indictment), the protection from double jeopardy, and the one that interested Causby – the right to compensation if the government “takes” private property. As the founding father, James Madison, drafted it : “nor shall private property be taken for public use, without just compensation.” This was Causby’s problem with the government. He wanted restitution for what he had lost due to their actions.
Causby’s case was heard before the Court of Claims, a US Federal Court that adjudicated monetary claims against the United States (This Court was abolished in 1982 and all trial cases were moved to the United States Court of Federal Claims). The Court held that the United States had indeed “taken” Causby’s property by allowing aircraft to fly below 300 feet over the farm and that Causby owned more than the actual real estate. Known as a common law “ad coelum” doctrine – “whoever's is the soil, it is theirs all the way to heaven and all the way to hell” - the Court of Claims held that all the air above (and by interpretation, all the ground below) belonged to Causby. And that the United States had violated that ownership, and thathe was due “just compensation.”
The United States appealed to the Supreme Court. In a 7-2 ruling, the Court held that Causby did not own any of the air above his property. They held that the ad coelum doctrine “has no place in the modern world.” However, they also held that the flights over Causby’s farm were conducted outside of “navigable airspace” and therefore his property was indeed “taken” because it was useless for its intent (raising chickens) and he was probably due some sort of compensation. The Court remanded the case back to the Court of Claims. Their job then became one of determining exactly what kind of damage was done and how much that equaled in dollars.
It's important to recognize that the two dissenting justices agreed that Causby deserved compensation, but they thought compensation should have been determined at the state, and not federal, level. That, of course, could not happen as the defendant in the case was the federal government and the damages had to do with flights outside of navigable airspace, which was (and still is) regulated by the federal government.
Causby was eventually compensated, but only for the loss of his occupancy of the physical real estate (he could no longer be a chicken farmer and therefore his property suffered dwindling value) but not for the loss of his chickens. His suit against the United States, and his ultimate victory in proving “taking” without physically touching the property (by aircraft flying overhead), is now known as “avigation easements”. Around the time of the Causby case, Congress legislated that the United States “is hereby declared to possess and exercise complete and exclusive national sovereignty in the air space above the United States.” Because of the Causby, Congress also changed navigable airspace to include “airspace needed to ensure safety in the takeoff and landing of aircraft.”
The importance of this case in reference to the National Airspace System are the words “navigable airspace”. Causby institutionalized the need for more definition and reminded us that navigable airspace is owned by the United States because of the commerce clause of the Constitution, which gives ownership of navigable waterways and public highways (and public airways) to the federal government. They ended up paying Causby because they owned that which they took from him. The frequent low-level flights were the “direct and immediate cause.”
So where did this airspace start? What was considered “minimum altitudes”? And were those altitudes safe enough? The early answers to those were placed into law via the Air Commerce Act (1926) and the Civil Aeronautics Act (CAA in 1938), but up until Causby, nobody ever really discussed this outside of the CAA regulations. Those regulations established that navigable airspace is the airspace above the minimum safe altitudes of flight (prescribed by regulations issued by the Civil Aeronautics Board) but does not include airspace below the minimum safe altitudes necessary for takeoff and landing. Hence, the award to Causby. A 500-foot minimum altitude was established, except for takeoff and landing.
So now we had, in addition to the applicable Acts from 1926 and 1938, a true case-law definition of “navigable airspace” and “minimum safe altitudes”. But why is the “taking clause” ruling of Causby so important to today’s National Airspace System? Because it established the need for pilots to recognize and comply with airspace rules. Violations will give cause to a lawsuit claim that “taking” occurred. As the years went by, three more cases would further define this – Griggs v. Allegheny County (402 Pa. 411, 168 A.2d 123 (Pa. 1961)), Branning v. United States (654 F.2d 88 (Fed. Cir. 1981)), and Brown v. U.S., 73 F.3d 1100 (Fed. Cir. 1996).
In Griggs, the plaintiff claimed that aircraft landing and departing from the newly minted Greater Pittsburgh Airport flew directly over his property and that his property was “greatly damaged and depreciated in value” (Griggs used the 14th Amendment instead of the Fifth because he was suing a local government instead of the United States). In Branning, the plaintiff claimed that the noise from military aircraft practicing “carrier landings” at a nearby airport had negatively impacted his ability to develop a 525-acre tract of property in Beaufort County, South Carolina. And in Brown, the Court looked at how the future use of property may be affected by overflights. All are similar to Causby – a nearby airport disrupted the lives of residents. All four were brought to the Court because of the Fifth Amendment. Three of them won (Brown was reversed and remanded back to the trial court for them to decide if the property was taken and if so, how much compensation was due). Those cases kept the development of the National Airspace System moving forward.
The United States, first through the CAA and now through the FAA, has continued to refine the airspace definitions with two mandates in mind: first, ensure the safe operations of aircraft, and second, to not bother the underlying population. If we, as professional pilots, continue to plan our operations in compliance with the conditions and limitations set in the National Airspace System, Causby, Griggs, and Branning will (hopefully) sit as unused precedents.
About the author: Scott Tish, is a retired helicopter air ambulance professional. He is currently pursuing his Juris Doctorate.
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