Big Stone Broadcasting, Inc. v. Lindbloom

• Citation: 161 F.Supp.2d 1009
• Decision Date: 27 August 2001
• Docket Number: No. 00-1012.,00-1012.
• Parties: BIG STONE BROADCASTING, INC., Plaintiff, v. Dr. Buron LINDBLOOM, in his official capacity as Chairman of the South Dakota Aeronautics Commission, et al., Defendants.
• Court: U.S. District Court — District of South Dakota

Page 1009

161 F.Supp.2d 1009

BIG STONE BROADCASTING, INC., Plaintiff, v. Dr. Buron LINDBLOOM, in his official capacity as Chairman of the South Dakota Aeronautics Commission, et al., Defendants.

No. 00-1012.

United States District Court, D. South Dakota, Northern Division.

August 27, 2001.

Brent A. Wilbur, Neil K. Fulton, May, Adam, Gerdes & Thompson, Pierre, John L. Krenn, Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, MN, for Plaintiffs.

Mark T. Quinlivan, U.S. Dept. of Justice, Washington, DC, Amicus Curiae, for Plaintiffs.

Darin P. Bergquist, Department of Transportation Legal Division, Pierre, for Defendants.

MEMORANDUM OPINION AND ORDER

KORNMANN, District Judge.

[¶ 1.] Plaintiff Big Stone Broadcasting, Inc. ("Big Stone") instituted this action for declaratory and injunctive relief against the seven members of the South Dakota Aeronautics Commission (SDAC) and the South Dakota Attorney General (collectively "defendants"), claiming that SDCL Chapter 50-9 and ARSD 70:02:03, which govern the construction of structures over 200 feet in height, have been preempted by the Federal Aviation Act of 1958 ("the Act"), 49 U.S.C. § 1301 et. seq., and by Part 77 of the Federal Aviation Administration (FAA) Regulations governing "Objects Affecting Navigable Airspace," 14 C.F.R. § 77. Both parties, pursuant to Fed. R.Civ.P. 56, have moved for summary judgment. All parties agree that there are no genuine issues of material fact and that summary judgment in some form is appropriate. In addition, Big Stone has moved for an order under Fed.R.Civ.P. 12(f) to strike an affidavit which was submitted by defendants in support of their motion for summary judgment. After careful review of the motions, briefs, and oral argument, the court concludes that Big Stone's motion to strike should be denied and that Big Stone is entitled to judgment as a matter of law on some issues.

FACTUAL BACKGROUND

[¶ 2.] This case concerns the proposed construction of a radio broadcast tower near South Shore, South Dakota. If completed, the tower would have a height of 875 feet and would be located approximately 900 feet south of the centerline of South Dakota Highway 20. Due to the intricacies of broadcast signals and the necessity of avoiding impermissible interference with other broadcast signals, the placement of the tower at the disputed location is the only location that would allow Big Stone to provide service to both Ortonville, Minnesota, and Watertown, South Dakota.

[¶ 3.] In July of 1999, Big Stone, via its predecessor in interest, Pheasant Country Broadcasting, Inc.,¹ filed an application for construction with both the Federal Communications Commission (FCC) and the FAA. Because of the height of the proposed tower, FCC regulations, 47 C.F.R. § 17.7, mandate that notice be given of the proposed construction to the FAA, which determines whether the proposed construction will present a hazard to air traffic safety. According to its own guidelines, 47 C.F.R. § 17.4(b), the FCC can only authorize the construction of such a tower if the applicant provides the FCC with a "no hazard" determination from the FAA.

[¶ 4.] The FAA, pursuant to 49 U.S.C. § 40103, has adopted regulations for making its "no hazard" determinations. Specifically, Part 77 of Title 14 of the Code of Federal Regulations, which is entitled "Objects Affecting Navigable Airspace," sets out the FAA's regulations in detail. Subpart B requires persons proposing certain types of construction or alteration to give notice to the Administrator of the FAA. Subpart C sets precise standards to determine whether an object is an obstruction to "the use of navigable airspace by aircraft and to existing air navigation facilities, such as an air navigation aid, airport, Federal airway, instrument approach or departure procedure, or approved off-airway route." 14 C.F.R. § 77.21. Subpart D explains how the FAA will conduct its aeronautical studies to evaluate proposed construction or alteration effects on the use of air navigation facilities or navigable airspace by aircraft, and it also formalizes the procedure for review. Subpart E provides comprehensive rules of practice for hearings before the FAA regarding hazards to air navigation, and subpart F details procedures which allow the grouping of antenna structures to localize their effect on the use of navigable airspace.

[¶ 5.] In October of 1999, the FAA completed an aeronautical study concerning the proposed tower. As part of the study, the FAA gave notice of the proposed construction and received no objections to it. South Dakota did not participate in this process. In addition, the FAA assessed the impact the proposed tower would have on existing and planned visual flight rules (VFR)² operations and procedures. The study determined that because there was no evidence of a significant volume of VFR activity in the area of the proposal, the proposed structure would have no substantial adverse effect on VFR operations. The FAA concluded that the proposed construction would not be a hazard to air navigation and issued a "no hazard" determination. South Dakota did not challenge this determination, within the FAA or otherwise. Based on the FAA's determination, the FCC granted Big Stone a construction permit on February 14, 2000.

[¶ 6.] At the same time Big Stone sought approval from the FCC and FAA in July of 1999, Big Stone also applied for permission to construct the tower from the SDAC which has the duty to "foster air commerce with the state of South Dakota and ... supervision over the aeronautical activities and facilities within the state[.]" SDCL 50-2-5. Obtaining such permission is required by SDCL 50-9-7, and the regulations enacted pursuant thereto, ARSD 70:02:03:19.

[¶ 7.] On February 17, 2000, SDAC held a hearing to consider Big Stone's application. SDAC denied the application by written order on February 26, 2000. When SDAC denied Big Stone's application, it knew of the previous FAA determination of "no hazard." SDAC based its denial on ARSD 70:02:03:20, a regulation it had previously promulgated, which states:

Highways of the state trunk highway system³ designated in SDCL 31-4, are considered to be VFR flyways. If the proposed structure is located within 500 feet on either side of the centerline of a state trunk highway, the elevation of the proposed structure may not be more than 200 feet above the ground. If the proposed structure is located 500 feet or more from either side of the centerline of a highway, the height of the structure may not increase at a slope greater than 7:1 extending upward and outward.

SDAC determined that Big Stone's proposed construction would violate the protected airspace established in ARSD 70:02:03:20 by 618.2 feet. Based upon its penetration into the protected highway flight space, SDAC determined that the proposed tower constituted a hazard and denied Big Stone's application.

[¶ 8.] The claimed purpose behind SDAC's creation of VFR flight routes along the state trunk highways is to provide a safe harbor for pilots of small private aircraft. Pilots, especially those flying small planes ill-equipped for flying in bad weather and flying without an instrument rating, can descend to an elevation low enough to see the ground for navigational purposes until a suitable landing location can be found. Pilots can find such suitable landing locations, i.e. airports, by following a state trunk highway which will lead them to the nearest town with an airport. Obviously, tall towers and other structures could be potential hazards to any airplane that is following a state trunk highway.⁴ Because of that potential danger, and notwithstanding the fact that the FAA had issued a "no hazard" determination, SDAC denied Big Stone's application.

[¶ 9.] Soon thereafter, Big Stone filed suit in this court requesting both declaratory and injunctive relief.⁵ Big Stone's primary argument is that the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et. seq., and the federal regulations, 14 C.F.R. § 77, have completely preempted the field of aviation and air safety, rendering any inconsistent state action in such areas preempted by virtue of the Supremacy Clause of the United States Constitution.⁶ Defendants, not surprisingly, take the opposite view, contending that the field of aviation and air safety have not been completely preempted. Defendants concede that were this court to find preemption, SDAC's decision regarding Big Stone must be reversed. However, defendants request that the court stop short of declaring all of SDCL Chapter 50-9 and any regulations enacted pursuant thereto unconstitutional, arguing that the enforcement mechanisms given to SDAC are necessary to enforce any FAA hazard determinations, as the FAA has no enforcement power itself.

[¶ 10.] Both parties, pursuant to Fed. R.Civ.P. 56, have moved for summary judgment. In support of their motions, both parties filed briefs, statements of claimed undisputed facts, and affidavits. In response to an affidavit filed on behalf of defendants, Big Stone has moved for an order that it be stricken pursuant to Fed. R.Civ.P. 12(f). The court will first dispose of the motion to strike and then proceed to the cross-motions for summary judgment.

ANALYSIS

I. PLAINTIFF'S MOTION TO STRIKE

[¶ 11.] In support of their motion for summary judgment, defendants submitted the affidavit of defendant Harley Taylor, a member of SDAC. Plaintiff, pursuant to Fed.R.Civ.P. 12(f), moved to strike the affidavit, claiming that it is immaterial to the issues presented.

[¶ 12.] Rule 12(f) expressly authorizes the court to strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous material." Fed.R.Civ.P. 12(f) (emphasis added). In ruling on a Rule 12(f) motion, the court has considerable discretion. See Nationwide Ins. Co. v. Central Missouri Electric Coop., Inc., ___ F.3d ___ (8th Cir.2001) (located at 2001 WL 856259)....