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One Engine or Two?

Posted 42 days ago ago by Admin

United States District Court, N.D. Illinois, E.D.
No. 88 C 3480.
691 F. Supp. 1148 (1988)

On the utility side of our industry, rotary-wing aircraft accomplish a high volume of different tasks, ranging from firefighting to survey work to long-line external loads. One such task once brought about an appellate court decision that helped specifically define our rights to do that work in metropolitan areas as seen by the U.S. Constitution. Today, we will discuss Article VI and the 10th Amendment. Yes, the Constitution applies to what we do with our aircraft.

In 1988, Command Helicopters was contracted to conduct external load work within the city limits of Chicago. Command held a 14 CFR § Part 133 Operating Certificate issued by the Federal Aviation Administration (FAA) and operated single-engine helicopters for long-line work under that certificate. The city of Chicago attempted to prevent single-engine operations within the city limits by passing a municipal ordinance in early 1988 that stated:

37-30 No person shall operate a helicopter that is being used for raising, lowering or otherwise moving any external object unless the helicopter has 2 operating power sections driving the rotors turning about the vertical axis.
37-31 Any person violating Section 37-30 shall be fined not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00) for each offense and each day such violations shall continue shall be regarded as a separate offense.

Command sued the city of Chicago, stating that the ordinance violated the Supremacy Clause of Article VI of the United States Constitution. Before we get to the meat of the litigation, let’s look at two things. First, what is the Supremacy Clause, and two, why was this brought to an Article III court (in this case a U.S. Circuit court) and not to an Administrative Law Judge under FAA jurisdiction?

Article VI and the Supremacy Clause

The second paragraph of Article VI of the Constitution states:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” In short – federal law preempts state law whenever there is a conflict.

In Command v. Chicago, the conflict was the ordinance that attempted to overrule the way the FAA regulated Part 133 certificate holders. (*Spoiler Alert – the court held for Command Helicopters.) Now, the question is – why? Why didn’t Chicago prevail? Why wasn’t their ordinance legal in reference to the U.S. Constitution?

In Aircraft Owners and Pilots Association v. Port Authority of New York (United States District Court E. D. New York) No. 68 C 775, 305 F. Supp. 93 (1969), that appellate court found that:

49 U.S.C. § 1348(a) authorizes and directs the Administrator of the Federal Aviation Administration to develop plans for and formulate policy with respect to the use of the navigable air space and to assign by rule or regulation or order the use of the navigable air space under such terms, conditions and limitations as he deems necessary in order to assure "the safety of aircraft and the efficient utilization of such air space.

The key words here are “safety of the aircraft.” The FAA is an agency that is part of the Executive Branch. By statute (49 U.S. Code § 106 - Federal Aviation Administration), they are given the authority to create and regulate all aircraft operations. So, when the City of Chicago decided to infringe upon that authority by creating this ordinance, they stepped right into the Supremacy Clause.

However, sometimes states can dictate things that you might assume fit under the holdings of entities such as the Aircraft Owners and Pilots Association. For instance, a state can legislate a statute that requires ambulances to have air conditioning for the comfort of the patient and they can make that a requirement for the issuance of an ambulance license. And that could apply to helicopter air ambulance (HAA) operations as well because the requirement for the air conditioning has nothing to do with “aircraft safety” – it’s just an accommodation for passenger comfort. Requiring it does not adversely affect any established CFR by the FAA nor does it affect safe aircraft operations.

So, why was this brought before an Article III court instead of being adjudicated by an Administrative Law Judge (ALJ) within the agency? Normally, actions within the regulatory reach of an agency are heard by an ALJ, but when the action — in this case, the city of Chicago and their ordinance requiring more than one engine to conduct long-line operations within the city’s jurisdiction— created the conflict with the Article VI  Supremacy Clause, so the ALJ option was out of consideration. Generally, when an agency-related issue is brought before an Article III court, one of the elements that the Plaintiff must present is that all attempts to resolve the issue at the agency level were exhausted. We will discuss the topic of how agencies work, why they fall under the Executive Branch, and when you can go outside the agency for relief in a future article.

A final note – in Harrison v. Schwartz, 319 Md. 360 (Md. 1990), the court found that Congress gets to lay the playing field when it comes to federal vs. state laws. The holding stated, in part, that “even absent express pre-emption, when a federal statute made “in pursuance” of the Constitution is so comprehensive that it occupies the field leaving no room for state action, preemption also occurs.” I think we can all agree that the FAA pretty much has the field covered.

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