Cert Petition Asks: Is There A Federal Avigational Servitude?

Keep an eye out on June 19, 2008: that's the date the US Supreme Court will consider whether to grant review of the Ninth Circuit's decision in Vacation Village, Inc. v. Clark County, No. 05-16173 (July 23, 2007), a decision I blogged about here.  The issue in that case, as posed by the petitioner is:

Whether a State’s recognition and constitutional protection of an unqualified compensable ownership interest in 500 feet of navigable airspace above a landowner’s property is preempted by federal laws that confer on the federal government "exclusive sovereignty" over the navigable airspace of the United States and grant the public the fight to traverse navigable airspace less than 500 feet above ground level to ensure safe takeoffs and landings of aircraft.

Clark County, Nevada imposes a height restriction on structures near McCarran Airport in Las Vegas, While the Ninth Circuit held there was no regulatory taking under federal law, it determined that under a Nevada law, the height restriction was a physical invasion of private property and therefore a per se regulatory taking meriting compensation.  To reach this conclusion, the Ninth Circuit relied on a Nevada Supreme Court decision recognizing private property rights in the first 500 feet of airspace above ground.

The County asserts in its petition that this conclusion is impossible, since federal law makes airspace "part of the publicly-owned, navigable airspace needed to ensure safe takeoffs and landings."  Petition at 3.  This sounds a lot like the County is asking the Supreme Court for the first time to recognize an overriding public interest in airspace akin to the federal government's paramount rights in navigable waters (aka the "navigational servitude").  In other words, that airspace is essentially incapable of private ownership.  This position should be familiar to anyone who deals regularly with the Army Corps of Engineers: the navigational servitude -- unlike the "avigational" servitude suggested by the petition -- is an ancient doctrine with its roots in Roman law which insures that all waterways that are actually navigable in their natural condition can be used by the public without payment of compensation.  See Kaiser Aetna v. United States, 444 U.S. 164 (1979) (a case argued and won by my Damon Key colleagues Charlie Bocken and Diane Hastert, preventing the Corps from expanding the servitude to require uncompensated public use of navigable waters covered by federal regulations).  Unlike the navigational servitude, however, the federal government's ability to regulate airspace is much more limited as recognized in the amicus brief filed by the Solicitor General:

While Congress presumably could enact statutes expressly adopting [petitioner's suggested] relatively complicated rule for preemption of state takings law, petitioner does not contend that Congress has done so.  Rather, petitioner relies on principles of implied contract preemption, under which federal law preempts state law where compliance with both federal and state law is impossible or where state law poses an obstacle to accomplishing the full purposes and objectives of Congress as expressed in a statute.

Brief for the United States as Amicus Curiae at 9.  That brief also asserts the ability to use navigable airspace does not conflict with the requirement that an airport provide compensation:

Nor does the compensation remedy at issue in this case conflict with the statutory right of United States citizens...to travel through the navigable airspace.... The expansion of an existing airport, or the modification of its operations (like the shift from a 20:1 to a 50:1 approach path in this case), will often cause the statutory definition to encompass airspace that was not previously covered.  The compensation requirement announced in [McCarran Int'l Airport v.] Sisolak[, 137 P.3d 1110 (Nev. 2006), cert. denied, 127 S. Ct. 1260 (2007)] pertains to the process by which particular airspace becomes part of the "navigable airspace" as a result of changes in airport operations.  State-mandated compensation for property taken during that process does not, in and of itself, conflict with the public right of transit through the "navigable airspace" once those changes have been accomplished.

U.S. Brief at 13 (emphasis original).  The County, on the other hand, argues that requiring it to provide compensation when it expands is facilities would be "catastrophic," since it would require airports to (gasp!) actually pay to expand their space onto private property.  Petition at 14.  Why following the Nevada Constitution's requirement of paying for property taken for public use is such a novel concept is, of course, not explained.

SCOTUSblog includes the case among the petitions to watch, and posts the Petition, the Brief in Opposition and the Reply brief.  Also available is the amicus brief of the Air Line Pilot's Association and the aforementioned Solicitor General's brief for the United States, recommending denial of the petition.