Perko v. United States

• Decision Date: 25 May 1953
• Docket Number: No. 14740.,14740.
• Citation: 204 F.2d 446
• Parties: PERKO et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

204 F.2d 446 (1953)

PERKO et al. v. UNITED STATES.

No. 14740.

United States Court of Appeals Eighth Circuit.

May 25, 1953.

Edward L. Boyle, Duluth, Minn. (Fryberger, Fulton & Boyle, Duluth, Minn., on the brief), for appellants.

Thomas L. McKevitt, Attorney, Department of Justice, Washington, D. C. (J. Edward Williams, Acting Asst. Atty. Gen., Philip Neville, U. S. Atty., and William W. Essling, Asst. U. S. Atty., St. Paul, Minn., on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal from a judgment enjoining the defendants from violating the provisions of an airspace reservation created by Executive Order of the President of the United States No. 10092, dated December 17, 1949, 14 F.R. 7637, U.S.Code Cong. Service, 1950, p. 1567, applying to the "roadless area" of the Superior National Forest in northern Minnesota.

The pertinent provisions of the Order read:

"1. The airspace below the altitude of 4,000 feet above sea level over the following-described areas in the counties of Cook, Lake, and St. Louis, State of Minnesota, is hereby reserved and set apart as an airspace reservation:

"Those areas of land and water within the exterior boundaries of the Superior National Forest which have heretofore been designated by the Secretary of Agriculture as the Superior Roadless Area, the Little Indian Sioux Roadless Area, and the Caribou Roadless Area, respectively, and which are more particularly described as follows: * * *.

"2. After January 1, 1951, no person shall navigate an aircraft within this airspace reservation except in conformity with the provisions of this order and as permitted by or under the authority of regulations prescribed by the Secretary of Agriculture.

"3. Aircraft may be navigated within this airspace reservation when necessary for any of the following-described purposes:

"(a) Making an emergency landing.

"(b) Navigating when low-level flight is necessary for safety.

"(c) Conducting or assisting in the conduct of official business of the United States, the State of Minnesota, or of Cook, St. Louis, or Lake County, Minnesota.

"(d) Conducting rescue operations.

"4. Subject to general regulations of the Secretary of Agriculture, aircraft may be navigated within this airspace reservation until January 1, 1952, for the purpose of direct travel to and from underlying private lands; provided that air travel was a customary means of ingress to and egress from such lands prior to the date of this order.

"5. The Secretary of Agriculture shall carry out the provisions of this order, and for such purpose he is authorized to prescribe appropriate regulations.

"6. Any person navigating an aircraft within this airspace reservation in violation of the provisions of this order will be subject to the penalties prescribed by the Civil Aeronautics Act of 1938 (52 Stat. 973), as amended."

The defendants Perko, Skala and Zupancich are private owners of land in the roadless area where they operate resorts on lakes on the border between the United States and Canada in the area covered by the airban. Defendant West is in the commercial aviation business at Ely, Minnesota, and he serves the resorts of the other defendants with air service.

Prior to 1905 national forests were under the jurisdiction of the Secretary of the Interior. By the Act of February 1, 1905, 33 Stat. 628, management of the forest reservations was transferred to the Secretary of Agriculture. In the establishment of roadless areas the Secretary acted under 16 U.S. C.A. § 551, which reads:

"The Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the public forests and national forests which may have been set aside or which may be hereafter set aside under the provisions of section 471 of this title, and which may be continued; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction; * * *."

The Superior National Forest is located in northern Minnesota. It was created by presidential proclamation in 1909. 35 Stat. 2223. It borders on the boundary waters between the United States and Canada. Canada has established a national park to the north of a part of it.

By the terms of the airban proclamation involved here, issued December 17, 1949, air travel was permitted until January 1, 1952, "for the purpose of direct travel to and from underlying private lands; provided that air travel was a customary means of ingress to and egress from such lands prior to the date of this order."

The court found, and it is not disputed, that the defendants have repeatedly violated the order in question.

The defendants' first contention is that the President, under § 4 of the Air Commerce Act of 1926, has authority only to set apart airspace reservations for "national defense" and "public safety purposes" in the District of Columbia, and none other, and that, therefore, Executive Order No. 10092 is not a valid or enforceable order.

Section 4, 49 U.S.C.A. § 174, of the Act reads:

"§ 174. Airspace reservations

"The President is authorized to provide by Executive order for the setting apart and the protection of airspace reservations in the United States for national defense or other governmental purposes and, in addition, in the District of Columbia for public safety purposes. The several States may set apart and provide for the protection of necessary airspace reservations in addition to and not in conflict either with airspace reservations established by the President under this section or with any civil or military airway designated under the provisions of sections 171, 174-177, and 179-184 of this title. May 20, 1926, c. 344, § 4, 44 Stat. 570." (Italics supplied.)

The contention here is that by application of the rule of ejusdem generis the President's powers under § 4 is limited to the creation of airspace reservations for national defense or for public safety in the District of Columbia, and that the words "or other governmental purposes" are without meaning. The rule of ejusdem generis is defined in 50 Am.Jur., Statutes, § 249, as "* * * where, in a statute, general words follow a designation of particular subjects or classes of persons, the meaning of the general words will ordinarily be presumed to be, and construed as, restricted by the particular designation and as including only things or persons of the same kind, class, character, or nature as those specifically enumerated." However, the text proceeds: § 250. "The rule of ejusdem generis is far from being one of universal application. It is neither final nor conclusive * * * The doctrine * * * is but a rule of construction to aid in ascertaining and giving effect to the legislative intent, where there is uncertainty, and does not warrant the court in subverting or defeating the legislative will by confining the operation of a statute within narrower limits than intended by the lawmakers * * *. Moreover, where the particular words embrace all the persons or objects of the class mentioned, and thereby exhaust the class or genus, there can be nothing ejusdem generis left for the rule to operate on, and a meaning must be given to the general words different from that indicated by the specific words, or there can be ascribed to them no meaning at all."

Since the Superior National Forest is not in the District of Columbia the words "for public safety purposes" in that territory have no application to the question presented. Moreover, the words "for national defense" embrace all the objects to which it applies and, therefore, the argument renders the words "or other governmental purposes" meaningless. The court should not so construe the statute. The language of the Act shows that it was intended to protect the National Forest for the purposes for which it was created. United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598; Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522; Helvering, Commissioner, v. Stockholms Enskilda Bank, 293 U.S. 84, 55 S. Ct. 50, 79 L.Ed. 211; Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610; Danciger v. Cooley, 248 U.S. 319, 39 S.Ct. 119, 63 L.Ed. 266.

The defendants next contend that Executive Order No. 10092 is not a valid and enforceable order because it does not state the purpose for which an airspace reservation was set...