Plaintiffs in McCoy v. East Coast Aero Club et al, filed a motion for a preliminary injunction against defendants in MA Superior Court.  A hearing has been requested by the plaintiffs.

See original article here.

The Airport and the City’s Proprietary Powers
City council members come from all walks of life. The common thread among members is the desire to give back and improve the quality of life for residents - and the willingness to give up many evenings in that pursuit. Being an attorney is not a requisite for council members, thus reliance upon relevant legal counsel is key.

A decision was made March 12 by the Colorado Court of Appeals regarding Superior and Boulder County’s lawsuit addressing aircraft noise and lead-based-fuel impacts from certain operations at Rocky Mountain Metropolitan Airport. In its ruling, the court relied on the U.S. Supreme Court decision in City of Burbank v. Lockheed Air Terminal Inc., which held that, because the FAA has exclusive jurisdiction over the navigable airspace of the United States, federal law generally preempts local government regulation of aircraft noise using the Police Powers (state court), to the extent that regulation restricts the operation of aircraft in flight. The court however, acknowledged that local governments may have authority to adopt certain noise restrictions themselves using their Proprietary Powers, as airport owners (proprietors). This Proprietary Powers exception to preemption is a recognition that airport proprietors can be held liable for damages resulting from noise and other pollution at their airports, so proprietors must have the power to limit those nuisances to avoid liability. However, the court determined that a state court cannot compel the proprietor to exercise that authority through a court injunction, because that would involve the court ordering the proprietor to limit the operation of aircraft in flight, which is exclusively within the FAA’s jurisdiction. So, Superior and Boulder County residents may have a right, but they don’t have a remedy. JeffCo’s position effectively is: “I might be able to stop this nuisance, but you can’t make me.”

Did the Court of Appeals get it wrong? It’s entirely possible. Superior officials are currently reviewing the decision and evaluating whether to seek further review by the Colorado Supreme Court.

The good news seems to be that a city like ours could use its Proprietary Powers to rein in the public nuisance caused by the out-of-town training school planes using Longmont as their dumping ground for touch-and-go operations, right? Not if you listen to Longmont’s outside legal counsel, Kaplan Kirsch, the same firm who represents JeffCo. That law firm’s “advice” was  recently echoed in comments from council member Jake Marsing:

“First, federal law still preempts most regulation of aircraft in flight, especially around noise. Second, because Longmont has accepted FAA funding over the years, we’re bound by grant assurances that require the airport to be available on reasonable and non-discriminatory terms. Any restriction, like limiting touch-and-go operations, would have to fit within those rules and would very likely be challenged through a federal process…That said, I do hear the quality-of-life concerns, and I take them seriously. There are areas where I think we can make meaningful progress, like improving compliance with existing [voluntary] noise abatement procedures, looking closely at what policies are clearly within the City’s authority, continuing to push on unleaded fuel, and making better use of data to understand what’s actually happening.” 

Notice what is missing in his empty condolences: there is no mention of the City’s Proprietary Powers to regulate noise at our airport. Longmont apparently takes the position that it gave up those powers in exchange for FAA grant money.

Once again we’re told – our hands are tied.

Kaplan Kirsch does not represent the citizens of Longmont. They represent the City, the municipal corporation. We pay their fees, only to have them advise the City to tell us there is nothing the City can do to protect the public health and safety from this onslaught of noise and lead. And, since they represent JeffCo they are unlikely to take public stances that contradict what they are saying to the courts. I say we stop paying for a firm that is acting as an advocate for JeffCo’s “you can’t make me protect the public health and safety” argument.

Otherwise, it always comes back to – our hands are tied.

Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977 (9th Cir. 1990) -- is the correct analysis of the preemption issues and the scope of the Proprietary Powers exception to preemption, after the City of Burbank decision. 

After the court determines (properly) that the city of Long Beach's restrictions on the number of flights and the level of noise permissible at it airport are preempted using its police powers according to the City of Burbank decision, the court recognized the city's Proprietary Powers  to control noise at its airport (an exception to preemption recognized in the City of Burbank opinion). 

The court described the scope of those powers and the rationale for the exemption extends beyond purely financial concerns: "The [proprietor] should be allowed to define the threshold of its liability, and to enact noise ordinances under the municipal-proprietor exemption if it has a rational belief that the ordinance will reduce the possibility of liability or enhance the quality of the City's human environment." The court determined the Long Beach ordinance was properly within the scope of its Proprietary Powers and are not preempted by the federal government's exclusive jurisdiction over the navigable airspace.  

The court then analyzed whether the flight restrictions imposed by Long Beach violate the Commerce Clause in the Constitution (conflict preemption) by imposing an unlawful burden on interstate commerce. The court (correctly) determined that the restrictions have a rational basis, are not facially discriminatory against interstate commerce, and do not impose a clearly excessive burden on interstate commerce, even though the restrictions impact jet carrier service which has interstate impacts. Ultimately, the court upheld the injunction against the ordinance on procedural due process grounds, but the overall analysis is important for you to understand.

A restriction on touch-and-go operations by flight schools conducting purely intrastate operations, should fall within an airport operators proprietary powers if a rational basis is shown to protect the public health and safety from the noise and lead pollution as well as safety hazards of such operations. Those governments are only left with the argument that they cannot be compelled by an injunction to exercise those Proprietary Powers and that the FAA grant conditions prevent them from exercising those powers without FAA approval. Many, if not all, proprietors have agreed to give up the power to protect the public health and safety from this public nuisance in exchange for some money to fill the hole in their airport fund budget caused by their refusal to impose rational charges against the users of the airport.

By: Steven M. Taber, Esq.

Advanced Air Mobility (AAM) is frequently presented as aviation’s next great leap: quieter aircraft, shorter trips, reduced congestion, and new forms of regional connectivity. Pilot projects are underway across the country; partnerships between manufacturers, operators, and municipalities continue to proliferate; and regulatory pathways are steadily being assembled. See, e.g., U.S. DOT National Advanced Air Mobility Strategy, 2023. The prevailing narrative is one of inevitability and innovation.

For communities already living with aviation impacts, however, AAM raises a more cautious and enduring question. Whether AAM ultimately improves quality of life or compounds existing burdens will depend less on aircraft design than on how legal authority is exercised as concepts move into operation. The transition from demonstration to routine service is precisely the stage at which institutional choices harden into lived reality.

Read the rest of the article here.

Published Dec 10, 2025 at 2:32 PM

Four oil and gas companies that develop heavy oil from the Inglewood oil field were sued Wednesday after being accused of failing to address health and environmental concerns for those who live in the area.

The Los Angeles County government said it has filed the environmental justice lawsuit, claiming that the four oil and gas operators — Sentinel Peak Resources California, Freeport-McMoRan Oil & Gas LLC, Plains Resources and Chevron U.S.A.– allowed toxic pollutants to be let out into the air, land and water by failing to adequately decommission and seal inactive oil and gas wells. 

More than 25% of the Inglewood oil field are idle or no longer producing gas and oil, but they continue to emit toxins into the surrounding communities, the office of LA County Supervisor Holly Mitchell, whose 2nd district includes South LA areas, said in a statement. 

“Plugging idle oil and gas wells—so they no longer emit toxins into communities that have been on the frontlines of environmental injustice for generations—is not only the right thing to do, it’s the law,” Mitchell said in a statement. “At the very least, oil companies that have long profited from this land must uphold their responsibilities to properly close these wells and ensure they cause no further harm.”

The lawsuit also alleges that the companies “unjustly enriched themselves by investing their money elsewhere” without properly decommissioning the wells. 

The county is seeking civil penalties of up to $2,500 a day for each well from the current owner of the Inglewood well, Sentinel, committed unfair business practices.

Michell’s office argued that more than one million people live within 5 miles of the well as homes, apartments and other facilities surround the field. 

The idle wells have been inactive for at least 23 consecutive months. 

In 2023, Culver City and Sentinel Peak Resources reached a settlement, mandating the company to plug 15 wells by the end of 2027, with at least 3 wells needing to be capped every calendar year. 

Find a copy of the complaint here. See page 63 for details on the Unjust Enrichment claims.

Borland v. Sanders Lead Co., 369 So.2d 523, 529-30 (Ala. 1979) (permitting recovery for trespass upon intrusion of lead and sulfoxide particulates). https://law.justia.com/cases/alabama/supreme-court/1979/369-so-2d-523-1.html See also, Maryland Heights Leasing, Inc. v. Mallinckrodt, Inc., 706 S.W.2d 218, 225-26 (Mo. Ct. App. 1985) (radioactive emissions may support trespass claim if radioactive material has been deposited on the property); Martin v. Reynolds Metals Co., 342 P.2d 790, 794 (Or. 1959) (operation by Defendants of an aluminum reduction plant caused certain fluoride compounds in the form of gases and particulates, invisible to the naked eye, to become airborne and settle on Plaintiffs' property, rendering it unfit for raising livestock. sufficient for recovery under trespass claim). The Borland Court (Ala. Sup. Ct) cited Restatement, Second, Torts, § 158, and particularly emphasized a portion of the Comments under this section, which recites:

"`In order that there may be a trespass under the rule stated in this Section, it is not necessary that the foreign matter should be thrown directly and immediately upon the other's land. It is enough that an act is done with knowledge that it will to a substantial certainty result in entry of foreign matters.'" The Colorado Supreme Court agreed in Hoery v. United States, 64 P.3d 214, 217 (Colo. 2003): [Plaintiffs] do not need to allege that Defendants intended to cause the particular hazards identified in the Complaint. Rather, to succeed on the trespass claim, the ​[​Plaintiffs] must show that the ​[​Defendants] intended to perform the acts that caused the harmful intrusion, and that they knew the intrusion​ would likely result.

Here, the agencies noted that air tours pass over a prime area for bighorn sheep lambing in the Badlands Park and that 70% of the sheep in the Park were lost in 2021 due to disease. As to the peregrine falcons, the agencies noted that a pair nested in Mount Rushmore Park in 2020 had four offspring, none of which survived. The agencies noted both species are susceptible to noise disturbance and that stressors such as air tour noise could impact their populations. The fact the agencies did not determine whether air tours directly caused the species’ population losses in the Parks, or that different flight altitudes and patterns may cause less harm, does not make the agencies’ Plans arbitrary or capricious.

See ruling here. 

Anti-commandeering law is related to Congress' Spending Clause powers (Art. I, Sec. 8, cl. 1 a.k.a. the "power of the purse"). The Supreme Court has been clear that the federal government cannot coerce state and local action by withholding federal funds. In 2012, in National Federation of Independent Business v. Sebelius, the Court declared unconstitutional a provision of the Patient Protection and Affordable Care Act that required state governments receiving Medicaid funds to provide coverage to those within 133 percent of the federal poverty level. Those not complying would lose all federal Medicaid funds. 

Chief Justice Roberts, writing for the Court, said that “[i]n this case, the financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’ — it is a gun to the head.” The Court explained that “Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs. . . . The threatened loss of over 10 percent of a State’s overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.” Sound familiar?

Congress can also place requirements on the recipients of federal funds to regulate their conduct in exchange for federal funding. While funding conditions such as these are common, they are subject to constitutional limitations. First, funding conditions must provide clear notice to the recipient of what actions are required in exchange for federal funds and the consequences of noncompliance. Second, funding conditions must be related to the purposes of the federally funded program or activity. Third, although Congress may incentivize states to adopt a particular policy in order to obtain specific federal funds, it may not coerce state participation. Congress may not, for example, tie an existing funding source on which a state has come to rely on compliance with a new kind of requirement. Fourth, the funding condition may not violate an independent constitutional bar or the related unconstitutional conditions doctrine. So, what does a prohibition on cities enacting noise regulations or banning touch-and-go operations have to do with a grant to build a fence or airport improvement? And, now that cities are completely reliant on federal AIP grants to fund their operations, can Congress tie an existing funding source on which a state has come to rely on compliance with a new kind of requirement (continue to sell leaded aviation fuel or be fined $5,000 a day)? Isn't that a "gun to the head?" As for the final requirement, the grant conditions require cities to bargain away their police power -- the sovereign responsibility to protect public health, safety and welfare. That is unconstitutional. United States v. Winstar Corp., 518 U.S. 839, 874, (1996) (stating that the reserved powers doctrine was developed to prevent public contracts from becoming a "threat to the sovereign responsibilities of state governments").

Here is the City of Torrance's Brief in Opposition to the Petition of Zamperini Airport Preservation Society (ZAPS) to invalidate Torrance's ban on touch-and-go and other operations at its airport. It is a very solid presentation of the reasons why the City of Torrance has the power to limit these operations to reduce noise, using its airport proprietor's exemption to FAA preemption, and why ANCA does not apply to this ordinance (ANCA only applies to restrictions on Stage 2 or Stage 3 aircraft, which are not present at the Torrance Airport, and ANCA does not have a private right of action for third parties to use as the basis for standing).

It should also be noted: "the FAA has not written the City, stating that Ordinance 3930 is preempted or in conflict with ANCA; the FAA has not attempted to intervene in this case; and the FAA has not sought to file an amicus curiae brief in this action. Similarly, none of the airport-based flight schools has filed suit challenging Ordinance 3930; and no flight school has sought to intervene, or to file an amicus curiae brief in this case." [Clearly, the FAA wants no part of this suit, presumably because it thinks it would lose on preemption and cannot impose ANCA restrictions on Torrance, in part because Torrance has not taken FAA grant money since 1986, but also because, under its own plain language of the statute and rules, ANCA does not apply to these flight school aircraft.]

Files:

• RESPONDENT CITY OF TORRANCE’S BRIEF IN OPPOSITION TO PETITIONER’S MOTION FOR WRIT OF MANDATE
• REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO PETITIONER’S MOTION FOR WRIT OF MANDATE
• DECLARATION OF RAFAEL HERRERA IN SUPPORT OF RESPONDENT CITY OF TORRANCE’S BRIEF IN OPPOSITION TO PETITIONER’S MOTION FOR WRIT OF MANDATE
  

Judge Denise J. Casper: ELECTRONIC ORDER entered re: 24 Motion to Remand to State Court. Having considered Plaintiffs' motion to remand this matter to state court, D. 24, Defendants' opposition to same, D. 33, and Plaintiffs' reply, D. 36, the Court ALLOWS the motion. Standard of Review. Upon the filing of a motion to remand, the Court must assess whether it "would have had original jurisdiction of the case had it been filed in [this] court" initially. BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers of Am., IAMAW Dist. Lodge 4, 132 F.3d 824, 832 (1st Cir. 1997) (quoting Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 702 (1972)). When a plaintiff files an action in state court and the defendant responds by invoking federal jurisdiction through removal, the defendant has the burden of establishing that removal to the district court is proper. Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999). The defendant "must... make a 'colorable' showing that a basis for federal jurisdiction exists." Id. (quoting BIW Deceived, 132 F.3d at 832). "Generally, [d]oubts about the propriety of removing an action should be resolved in favor of remand." Miara v. First Allmerica Fin. Life Ins. Co., 379 F. Supp. 2d 20, 26 (D. Mass. 2005) (alteration in original) (citation omitted). Background . The following facts are drawn from the allegations in the complaint, D. 2-3 at 5-13, and are assumed to be true for the purpose of considering the motion. Plaintiffs seek damages for Defendants' repeated low-altitude flights over their residence which, as alleged, last up to forty-five minutes, and generate noise and vibration and expose them to lead-based fuel particulate. D. 2-3 at 5. According to Plaintiffs, their efforts to seek relief have been met with retaliation, including pilots intentionally circling their residence. D. 2-3 at 8. Plaintiffs' assert claims of nuisance (Count I), negligent infliction of emotional distress (Count II), intentional infliction of emotional distress (Count III) and unfair and deceptive acts and practices under Mass. Gen. L. c. 93A (Count IV). D. 2-3 at 8-12. Discussion. Defendants removed this case on the basis that Plaintiffs' claims "implicate substantial federal questions, including the regulation of aircraft noise and air pollution under federal law, and are preempted by the Airline Deregulation Act (ADA)," "the Federal Aviation Act of 1958, as amended (FAA)," "Federal Aviation Regulations (FAR's)" and "the Clean Air Act." D. 33 at 1; see D. 2. A state-court suit that includes at least one claim "arising under the Constitution, laws, or treaties of the United States"can be removed to federal court. See 28 U.S.C. § 1441 (allowing for removal of suits that fall within the federal district courts' original jurisdiction over federal-question cases); 28 U.S.C. § 1331 (federal-question statute). "[T]he question whether a claim 'arises under' federal law must be determined by reference to the 'well-pleaded complaint.' A defense that raises a federal question is inadequate to confer federal jurisdiction." Merrell Dow Pharm. Inc. v. Thompson , 478 U.S. 804, 808 (1986) (citations omitted); see Rivet v. Regions Bank of La. , 522 U.S. 470, 475 (1998) (explaining that a "case may not be removed to federal court on the basis of a federal defense... even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case") (citation omitted). Defendants insist that Plaintiffs' claims are "grounded upon the Defendants' failure to comply with FAA regulations of aircraft operations, noise generated by engines and propellers subject to certification by the FAA and alleged pollution which is also governed by federal law." D. 33 at 8. This does not necessarily appear to be the case, where Plaintiffs' complaint stems not from the mechanics of the aircrafts, but instead from how they are flown. D. 2-3 at 5-12. Nor does the FAA create a private right of action or evince any attempt to preempt state law remedies. See D. 24-1 at 6-7; Abdullah v. Am. Airlines, Inc. , 181 F.3d 363, 375 (3d Cir. 1999) (noting that "it is evident in both the savings and the insurance clauses of the FAA that Congress found state damage remedies to be compatible with federal aviation safety standards"). This case is, therefore, distinguishable from City of Burbank v. Lockheed Air Terminal Inc. , 411 U.S. 624, 633 (1973) where "the Supreme Court held that the City of Burbank could not use municipal curfews to impose noise regulations on aircraft operations." Gustafson v. City of Lake Angelus , 76 F.3d 778, 783 (6th Cir. 1996) (distinguishing City of Burbank and holding that the FAA did not preempt city ordinances). Here, no state attempts to regulate aircraft noise. Instead, private parties seek damages for low altitude flights that they allege specifically target their residence. Defendants also point to City of Tipp City v. City of Dayton , 204 F.R.D. 388, 395 (S.D. Ohio 2001), in which a district court concluded that state law nuisance and tort claims related to airport departures which were brought by municipalities against a neighboring city were preempted by the FAA because they required the court to determine whether the city violated the FAA's Tower Orders. As Plaintiffs explain, however, they "do not allege that Defendants have violated any federal aviation standard, nor do they seek to enforce federal regulations." D. 36 at 2. Rather, they "assert a traditional state-law nuisance claim grounded in the harm caused by Defendants' tortuous conduct, irrespective of whether that conduct complies with or violates any federal directive." Id. Another session of this Court rejected similar arguments from the defendants in Casey v. Goulian , 273 F. Supp. 2d 136, 137 (D. Mass. 2003). There, defendants, pilots and an airport operator, had removed a state court complaint raising state-law nuisance claims arising from "noisy and dangerous stunt-airplane flights over their homes." Id. The court remanded the case to state court, noting that "the complaint itself [did] not contain any reference to the FAA or any other federal law" and "[e]ven if FAA statutory or regulatory standards did provide a required element of plaintiffs' state-law claims, defendants have failed to demonstrate that the FAA provides a private cause of action to enforce these standards." Id. at 138. According to the Casey court, "Congress, through the FAA, did not take the subject of airplane interference with property rights and give it exclusively to the federal courts." Id. at 140. This is the case here as well. Accordingly, the Court ALLOWS Plaintiffs' motion to vacate the removal of this case and remand to state court, D. 24, and, pursuant to L.R. 81.1(d), the Court will REMAND this case to the Middlesex Superior Court no sooner than thirty days. (LMH)