Seaplane Adventures, LLC v. Cnty. of Marin
| Decision Date | 22 November 2021 |
| Docket Number | C 20-06222 WHA |
| Citation | 572 F.Supp.3d 857 |
| Parties | SEAPLANE ADVENTURES, LLC, Plaintiff, v. COUNTY OF MARIN, CALIFORNIA, Defendant. |
| Court | U.S. District Court — Northern District of California |
John E. Sharp, Law Offices of John E. Sharp, San Rafael, CA, for Plaintiff.
Brandon William Halter, Marin County Counsel's Office, San Rafael, CA, for Defendant.
This order decides the preemption question raised by Seaplane's challenge to the County of Marin's COVID-19 health order. A prior order granted summary judgment for the County on Seaplane's equal protection and related Section 1983 claim. A full explanation of the facts underlying this litigation can be found in that order (Dkt. 70). The key facts for the preemption analysis are simple: the County only prohibited two of Seaplane's various operations, namely, recreational sightseeing flights and flights chartered for leisure travel. The health order did not prohibit Seaplane from offering transportation for essential activities or other operations such as fire spotting and cargo transport.
The County's motion for summary judgment did not extensively brief the preemption issue. Seaplane did not make a cross motion for summary judgment nor did it rely directly on a preemption argument in its opposition to summary judgment (though it did repeatedly reference its Federal Aviation Administration certificates). Nevertheless, the preemption issue warrants addressing.
An order requested that the FAA weigh in on the preemption question (Dkt. 35). The agency declined to do so, it said, because the challenged health order was no longer in effect, mooting the issue (though it did provide proof of Seaplane's FAA certificates) (Dkt. 43). So, we were left to decide the issue without the benefit of the FAA.
After the FAA's response, an order asked the parties to explain whether the preemption issue was, in their view, moot (Dkt. 46). The County agreed with the FAA, citing Bd. of Trustees of Glazing Health & Welfare Tr. v. Chambers , 941 F.3d 1195, 1199 (9th Cir. 2019), for the premise that "the repeal, amendment, or expiration of legislation will render an action challenging the legislation moot, unless there is a reasonable expectation that the legislative body will reenact the challenged provision or one similar to it" (Dkt. 49 at 2–3). The County contended that improving circumstances have decreased the need for future COVID-19 restrictions, making it unlikely that the County will enact a similar health order. The County also asserted that Seaplane's preemption claim does not entitle it to any other form of relief beyond the allegedly-mooted request for declaratory relief (Dkt. 49 at 4).
Seaplane responded by arguing that there is a reasonable chance that the challenged health order will be reinstated in the future. In support of this contention, Seaplane pointed out that the County amended the challenged health order four times between March 2020 and June 2021, and that the evolving nature of the pandemic (and COVID-19 variants) makes it possible the health order will be reinstated (Dkt. 50 at 2–3).
The pandemic has involved multiple setbacks in the progress toward reopening. The Court, therefore, agreed that there exists a reasonable enough likelihood that the health order will be reinstated to warrant consideration of the preemption issue. Because the preemption issue was not adequately addressed in the summary judgment briefing, however, the parties were ordered to show cause why or why not Seaplane's preemption theory should be upheld (Dkt. 68).
In response to the order to show cause, the County argued that the preemption theory should be dismissed because the County retained its police power to prohibit certain types of flights and because neither implied field nor conflict preemption applied to the health order (Dkt. 71 at 2). The County added that even if federal law preempted the health order's aviation-related restrictions, the only relief available to Seaplane would be injunctive or declaratory relief while damages would not be available (Dkt. 71 at 6).
Seaplane's response to the order to show cause not only repeated its preemption argument from the complaint but also added on the new argument that Seaplane is entitled to $1,000,000 in damages under Section 1983 because the County enforced a preempted health order against it (Dkt. 72 at 7). Seaplane acknowledged that no decision has specifically addressed preemption of aviation-related restrictions during a public health emergency but pointed to FAA guidance it found instructive (further discussed below) (Dkt. 72 at 2).
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Because the "Federal Aviation Act has no express preemption clause," plaintiff's preemption theories must allege either implied field preemption or conflict preemption. See Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc. , 555 F.3d 806, 808 (9th Cir. 2009). "The [Airline Deregulation Act], unlike the FAA, contains an express preemption provision." Montalvo v. Spirit Airlines , 508 F.3d 464, 474 (9th Cir. 2007). To bring a facial preemption challenge, a plaintiff must still overcome the high bar set in Salerno : that "no set of circumstances exists under which the [health order] could be valid." See Puente Arizona v. Arpaio , 821 F.3d 1098, 1104 (9th Cir. 2016) (citing United States v. Salerno , 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ).
For the following reasons, federal aviation law does not preempt the County's restriction on sightseeing flights but does preempt its application to transportation services (regardless of passengers’ reasons for traveling).
Because conflict preemption inquiry narrows the field preemption inquiry, this order considers conflict preemption first.
Conflict preemption arises "where compliance with both federal and state regulations is a physical impossibility" and in "those instances where the challenged state law stands as an obstacle to the objectives of Congress." Ventress v. Japan Airlines , 747 F.3d 716, 720–21 (9th Cir. 2014).
First , Seaplane pointed to no law which the health order forces it to violate. The health order did not interfere with Seaplane's ability to meet aviation safety standards or any other regulations. Prohibiting flights based on their being "recreational" would not make it physically impossible to comply with the health order under federal law because Seaplane had no obligation under federal law to provide the recreational flights prohibited by the health order.
Second , this order considers whether the challenged health order stood as an obstacle to the objectives of Congress and finds that it does, but in a much narrower sense than Seaplane contends.
Seaplane asserted that 49 United States Code Section 41713(b)(1) of the Airline Deregulation Act preempted the County's health order. Section 41713(b)(1) states:
[A] State, political subdivision of a State, or political authority of at least [two] States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.
(emphasis added). Seaplane has an air carrier certificate and is registered with the Office of the Secretary of Transportation as an air taxi operator, both of which allowed it to "provide air transportation" . Section 40101 of the Act defines "air transportation" as "foreign air transportation, interstate air transportation, or the transportation of mail by aircraft." Though our record does not suggest that Seaplane actually flew to other states or countries, its certificates allowed it to do so. Because Seaplane falls into the category of aircraft that "may provide air transportation," Section 41713(b)(1) applies to it.
The Supreme Court has held that the key language of Section 41713(b)(1), "related to," "express[es] a broad pre-emptive purpose." Morales v. Trans World Airlines, Inc. , 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). But "[i]f a state law's effect on price, route or service is too tenuous, remote, or peripheral, then the state law is not preempted." Air Transp. Ass'n of Am. v. City & Cty. of San Francisco , 266 F.3d 1064, 1070 (9th Cir. 2001) ; see also , Bernstein v. Virgin Am., Inc. , 3 F.4th 1127, 1141 (9th Cir. 2021) (). In Air Transport Association of America , our court of appeals explained the terms "related to" and "price, route, or service" as follows:
[A] state or local law is "related to" a price, route or service if it has a connection with, or reference to a price, route, or service. We have held that the terms "price," "route" and "service" were used by Congress in the public utility sense; that is, service refers to such things as the frequency and scheduling of transportation, and to the selection of markets to or from which transportation is provided. Airlines’ "rates" and "routes" generally refer to the point-to-point transport of passengers. "Rates" indicates price; "routes" refers to courses of travel.
266 F.3d at 1070 (quotations omitted).
In light of Air Transport Association of America , this order finds Section 41713(b)(1) does not apply to Seaplane's recreational sightseeing flights because these operations are not "a price, route, or service" as contemplated by Section 41713(b)(1). Recreational sightseeing is not a "public utility." Passengers on sightseeing flights leave from and return to the same spot, so there are no "markets to or from which transportation is provided." For the same reason, Seaplane's sightseeing flights do not count as a "course[ ] of travel." Section 41713(b)(1), therefore, does not preempt the County's health order insofar...
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