New Orleans v. Portion of Square 205

• Decision Date: 12 September 1994
• Docket Number: Civ. A. No. 94-369.
• Citation: 866 F. Supp. 969
• Parties: The CITY OF NEW ORLEANS By and Through the NEW ORLEANS AVIATION BOARD v. A PORTION OF SQUARE 205, AND SQUARE 209, KENNER, LOUISIANA, and Laurence Lambert.
• Court: U.S. District Court — Eastern District of Louisiana

866 F. Supp. 969

The CITY OF NEW ORLEANS By and Through the NEW ORLEANS AVIATION BOARD v. A PORTION OF SQUARE 205, AND SQUARE 209, KENNER, LOUISIANA, and Laurence Lambert.

Civ. A. No. 94-369.

United States District Court, E.D. Louisiana.

September 12, 1994.

David J. Halpern, Arthur D. Dupre, Jr., Jerry W. Sullivan, Halpern & Daigle, Metairie, LA, for City of New Orleans By and Through New Orleans Aviation Bd.

Eric A. Holden, New Orleans, LA, for defendant, Robert G. Koehl.

ORDER AND REASONS

MENTZ, District Judge.

The City of New Orleans ("New Orleans"), by and through its agent, the New Orleans Aviation Board ("NOAB"), commenced several expropriation actions in this court in order to acquire a fee simple interest in property located within the Runway Protection Zone ("RPZ") of the New Orleans International Airport ("airport"). The airport is located outside the geographical limits of New Orleans in the City of Kenner ("Kenner"), Jefferson Parish, Louisiana. Kenner filed suit in state court to enjoin the expropriation proceedings. New Orleans removed the injunction suit to this court. Before the Court are a motion to dismiss the expropriation suits for lack of subject matter jurisdiction, and Kenner's motion to remand its injunction suit for lack of subject matter jurisdiction. Having reviewed the parties' briefs and the applicable law, the Court GRANTS the motions for the reasons that follow.

I. Facts

NOAB operates the airport, which is a commercial facility licensed and regulated by the Federal Aviation Administration (FAA). The property NOAB seeks to acquire is within the RPZ at the airport. The RPZ is an area defined by the FAA and required by FAA standards to be cleared of objects and activities incompatible with safe and efficient airport operation. See United States Department of Transportation, FAA Advisory Circular No. 150/5300-13 (June 5, 1991) at ¶ 211(a)(7) and ¶ 212. The properties at issue allegedly contain land uses not permitted by FAA standards for the RPZ.

In order to comply with the FAA regulations, NOAB made offers to acquire the properties with federal funds pursuant to the Uniform Relocation Assistance and Real Property Acquisition Act, 42 U.S.C. § 4601, et seq., but the owners refused to sell. Thereafter, NOAB decided to pursue expropriation proceedings.

Under the Louisiana statutes governing airport zoning, Louisiana Revised Statutes § 2:381 et seq., the political subdivision owning the airport may acquire an interest in real property by condemnation in order to provide the necessary approach protection. See La.Rev.Stat.Ann. § 2:389 (West 1988).¹ A municipality is authorized to expropriate property located outside its limits for a public purpose, but only with the consent of the police jury of the parish in which the property is situated. La.Rev.Stat.Ann. § 33:4621 (West 1988).² The method for acquisition is found in the general laws providing for expropriation. See La.Rev.Stat.Ann. § 19.1, et seq. (West 1979 and West Supp.1994).

NOAB sought the consent of the Jefferson Parish Council and Kenner to expropriate the property in question.³ Both local governments initially consented to the proposed expropriation, but both subsequently rescinded the resolutions granting consent.

In order to conform with the FAA guidelines for the RPZ, NOAB commenced expropriation proceedings in federal court. A few days later, Kenner filed suit in Jefferson Parish to enjoin the expropriation proceedings based on NOAB's failure to obtain consent. New Orleans and NOAB removed the injunction suit to this court on the ground of federal question jurisdiction.

II. Federal Question Jurisdiction In the Expropriation Proceedings

A.

Subject matter jurisdiction in these expropriation cases is predicated on federal question jurisdiction. The defendant property owners seek dismissal of these suits for lack of subject matter jurisdiction, contending that NOAB asserts only a state law cause of action.

Under 28 U.S.C. § 1331, federal district courts have original "federal question" jurisdiction of "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Whether a case "arises under" federal law is determined by reference to the plaintiff's complaint. "A district court's federal-question jurisdiction, ... extends over `only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law,' Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 2856, 77 L.Ed.2d 420 (1983), in that `federal law is a necessary element of one of the well-pleaded ... claims,' id., at 13, 103 S.Ct. at 2848." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 108 S.Ct. 2166, 2173-74, 100 L.Ed.2d 811 (1988). If the plaintiff's complaint alleges such a claim, it is within the jurisdiction of the court, regardless of the ultimate merits of the claim, unless the claim is "so insubstantial, implausible, foreclosed by prior decisions of the Supreme Court, or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court." Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-67, 94 S.Ct. 772, 777, 39 L.Ed.2d 73 (1974).

NOAB states in its complaints that this Court has federal question subject matter jurisdiction under 28 U.S.C. § 1331 pursuant to the Federal Aviation Act of 1958, 49 U.S.C. § 1301, et seq., the "Airport and Airway Development Act of 1970, sic 49 U.S.C. app. § 2201, et seq.," and the U.S. Department of Transportation Federal Aviation Administration Advisory Circular No. 150/5300-13. NOAB further states that these federal statutory authorities together with Louisiana Revised Statutes Ann. § 2:1 et seq. and § 19.1 et seq., provide authority for the expropriation.

It is uncontested that federal law does not create NOAB's cause of action for expropriation. None of the federal laws cited in NOAB's complaint bestows a right to expropriate on a municipality. Indeed, NOAB admits in its brief that the authority to expropriate the property in this case is conferred by Louisiana law alone. NOAB's argument in support of jurisdiction is that the public purpose required by state law for expropriation is defined by federal law. Thus, jurisdiction rests on whether the federal aviation laws and regulations that NOAB contends furnish a public purpose are a necessary element of the claim for expropriation.

NOAB contends that the public purpose for expropriation is the protection of navigable airspace and safety zones defined by federal law, and that the FAA in providing funding grants for the acquisition of the property "directed" and/or "advised" NOAB to obtain control and clear the area of incompatible uses.⁴ NOAB cites 49 U.S.C. § 1301(29), which defines navigable airspace as "the minimum altitude of flight prescribed by regulations ... and shall include the airspace needed to ensure safety in takeoff and landing of airspace." NOAB also cites the FAA's June, 1991 Advisory Circular which contains the FAA's standards, recommendations, and guidelines for airport design, including the purpose of the RPZ, its dimensions, and the uses that are accepted and prohibited. In particular, the Advisory Circular provides:

211. OBJECT CLEARING CRITERIA. Safe and efficient operations at an airport require that certain areas on and near the airport be clear of objects or restricted to objects with a certain function, composition, and/or height.....

. . . . .

(a) Standards. Object clearance requirements are as follows:

. . . . .

(7) Runway Protection Zone (RPZ). The RPZ requires clearing of incompatible objects and activities as specified in paragraphs 212a(2) and 212a(4).

212. RUNWAY PROTECTION ZONE (RPZ). The RPZ's function is to enhance the protection of people and property on the ground. This is achieved through airport owner control over RPZ's. Such control includes clearing RPZ areas (and maintaining them clear) of incompatible objects and activities. Control is preferably exercised through the acquisition of sufficient property interest in the RPZ.

. . . . .

b. Recommendations. Where it is determined to be impracticable for the airport owner to acquire and plan the land uses within the entire RPZ, the RPZ land use standards have recommended status for that portion of the RPZ not controlled by the airport owner.

FAA Advisory Circular No. 150/5300-13 (June 5, 1991).

While the FAA's safety standards for the RPZ may be the impetus for the expropriation, and the funding grant may obligate NOAB to acquire the RPZ properties, NOAB's claim for expropriation does not necessarily depend on resolution of any federal law. This case involves the exercise of the power of eminent domain under the laws of Louisiana. A municipality's exercise of its power of eminent domain has traditionally been associated with the sovereign characteristics of a state. See Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 26, 79 S.Ct. 1070, 1071, 3 L.Ed.2d 1058 (1959); Creel v. City of Atlanta, 399 F.2d 777, 779 (5th Cir.1968).

Louisiana has declared for what local public purposes private property within its limits may be taken for airport use. Louisiana statutes define "public purpose" for airport zoning. Section 2:608 specifically provides that the acquisition of land to eliminate airport hazards is a public function, exercised for a public purpose, and a matter of public necessity. La.Rev.Stat.Ann. § 2:608 (West 1989).⁵ It also provides that land acquired for other purposes enumerated in the Chapter on airport zoning is acquired for public purposes. Section 2:389 authorizes the political subdivision owning the airport to acquire property by condemnation to provide the necessary approach protection. See supra, n. 1. Pursuant to Sections...