Agenda - Council Work Session - 07/08/2003

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06/17/2003 14:54 LAW OFFICE 2140 4TH RUE -> 42?5543 N0.574 P09 Steven M. Th?l, Appellant, vs. State of Minnesota, Respondent. C9-02-1365, Court of Appe~I~ Published...' Page g of 9 the [s]tates' are not to be eclipsed unless to do so was 'the clear and manifest purpose of Congress.'" Dahl v. Charles Schwab & Co., $45 N.W.2d 918,922 (Minn.. 1996) (quotation omitted), Preemphon eau be express or implied, but where it is implied, congressional intent to do so must be clearly inferred, either from the extent of federal involvement or from the scope of the federal interest; and even then the state will be preempted, only to the extent that state regulation "actually conflicts" with federal law. State by Minn. Pub. Lobby v. Metro. Airports Corem'n, 520 N.W.2d 388, 390 (Minn. 1994) (quotation omitted). Appellant argues that the ordinance is preempted by federal laws regarding airspace use regulation, 49 U.S.C. § 40103 (2002), and FAA regulations governing the' construction, alteration, activation, and deactivation of airports. 14 CFR § 157. We disagree. The Eighth Circuit has decided this precise issue in Condor Co~. v. City of St. Paul, 912 F.2d 215 (Sth Cir. 1990). In that case, the appellant argued that the city council did not have the authority to dictate the location ofheliports. The circuit court disagreed, stating: We 'see no conflict between a city's regulatory power over land use, ~d the federal regulation of airspace, and have found no ease recognizing a conflict. rd. at 219 (citations omitted). We agree. Appellant cia/ms that Condor is not similar to his situation and instead, points to City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 93 S. Ct. 1854 (1973), as being eontrollingi The issue in Burbank was whether federal law preempted a municipal curfew on takeoffs at an airport, and the Supreme Court concluded that the ordinance was preempted. But Burbank solely concerned a nuisance especially problematic for aircraft--no/se. Here, as discussed above, the ordinance was adopted to address public safety concerns. Moreover, "[m]erely because a state law touches on some a~ect of the airline industry does no/ necessarily mean that it is preempted by federal law." State v. Sherbrooke, 633 N.W. 2d 856, 862 (Minn. App. 2001). Thus, we eon.elude the ordinance is not preempted by federal regulations because regulating the location of heliports has been determined to be within the province of local governments, and the purpose oi the ordinance included public safety. Finally, we reject appellant's argument that, even if federal law does not p~reempt the ordinance, the http ://www. lawl] bmry. state, mn. us/archive/ctappub/0303/op021365-311 .btm 6/10/03