Folk v. Sturgell ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2155
GEORGE WELCH FOLK; TIMOTHY BRIAN FOLK,
Petitioners,
v.
ROBERT A. STURGELL, Acting Administrator Federal Aviation
Administration,
Respondent.
On Petition for Review of an Order of the National
Transportation Safety Board. (SE-18005; SE-18018)
Argued: March 23, 2010 Decided: April 22, 2010
Before DUNCAN and DAVIS, Circuit Judges, and Joseph R. GOODWIN,
Chief United States District Judge for the Southern District of
West Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Davis and Judge Goodwin joined.
Robert Giacinto Blackford, ALLEN & BLACKFORD, PC, Gaithersburg,
Maryland, for Petitioners. Laura Jennings, FEDERAL AVIATION
ADMINISTRATION, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
This appeal arises from a National Transportation and
Safety Board (“Board”) decision affirming an Administrative Law
Judge’s (“ALJ”) determination that Petitioners George and
Timothy Folk violated Federal Aviation Administration (“FAA”)
regulations. The issues before this court are whether
substantial evidence supports the finding that Petitioners flew
over a “congested area” according to 14 C.F.R. § 137.51 and
whether the term “congested area” violates the vagueness
doctrine under the Due Process Clause. For the reasons that
follow, we affirm.
I.
George Folk owns a farm in Martinsburg, West Virginia, and
operates a crop-dusting business with his son Timothy Folk. On
May 30, 2006, FAA Inspector George Cooper Towers received a
complaint about Petitioners flying too low. During a routine
inspection on June 16, 2006, Towers told Petitioners that he had
received a complaint about low flying and warned them that they
must submit a “congested area plan” before flying over any
congested area. When Petitioners asked what the term “congested
area” meant, Towers responded that no precise definition
existed. He explained, however, that “a group of . . . as few
as two or three houses . . . may be considered congested.” J.A.
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95. The significance of designating an area as congested is
that if complaints are made with respect to an area that is
determined to be congested, and no congested area plan has been
filed, the FAA will initiate an enforcement action. However,
the filing of a congested area plan is not considered an
admission that the proposed area is indeed congested.
On July 31, 2006, and September 9, 2006, Petitioners flew
their plane near the intersection of Swan Pond Road and Hollida
Lane in Martinsburg. Because they considered this area
uncongested, Petitioners did not file a congested area plan
before either flight. When neighbors complained about
Petitioners’ low flying, Towers initiated enforcement
proceedings against them. After conducting an evidentiary
hearing, the ALJ determined that Petitioners had violated FAA
regulations because the area near the intersection of Swan Pond
Road and Hollida Lane was, in fact, congested. The Board
affirmed. This appeal followed.
II.
Petitioners argue that the term “congested area” violates
the vagueness doctrine under the Due Process Clause, and that
substantial evidence does not support the determination that
they flew over a congested area. In order to provide context
for these issues, we begin with a discussion of the relevant
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regulatory framework. We then address each of Petitioners’
contentions in turn.
A.
FAA regulations generally prohibit low flying over
congested areas. For example, Section 91.119 of Chapter 14 of
the Code of Federal Regulations, which establishes “[m]inimum
safe altitudes,” provides:
Except when necessary for takeoff or landing, no
person may operate an aircraft below the following
altitudes:
* * *
(b) Over congested areas. Over any congested area of
a city, town, or settlement, or over any open air
assembly of persons, an altitude of 1,000 feet above
the highest obstacle within a horizontal radius of
2,000 feet of the aircraft.
(c) Over other than congested areas. An altitude of
500 feet above the surface, except over open water or
sparsely populated areas. In those cases, the
aircraft may not be operated closer than 500 feet to
any person, vessel, vehicle, or structure.
14 C.F.R. § 91.119. This section governs “the operation of
aircraft within the United States and within 12 nautical miles
from the coast of the United States.” Id. § 91.101.
FAA regulations provide for more lenient treatment of
agricultural aircraft. Sections 137.49 and 137.51 of Chapter 14
also concern minimum altitudes, but “apply to persons and
aircraft used in agricultural aircraft operations.” Id. §
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137.29(a). Section 137.49 regulates “[o]perations over other
than congested areas,” providing:
Notwithstanding Part 91 of this chapter, during the
actual dispensing operation, including approaches,
departures, and turnarounds reasonably necessary for
the operation, an aircraft may be operated over other
than congested areas below 500 feet above the surface
and closer than 500 feet to persons, vessels,
vehicles, and structures, if the operations are
conducted without creating a hazard to persons or
property on the surface.
Id. § 137.49. Section 137.51 regulates “[o]peration over
congested areas,” providing:
(a) Notwithstanding Part 91 of this chapter, an
aircraft may be operated over a congested area at
altitudes required for the proper accomplishment of
the agricultural aircraft operation if the operation
is conducted --
(1) With the maximum safety to persons and
property on the surface, consistent with the
operation; and
(2) In accordance with the requirements of
paragraph (b) of this section.
(b) No person may operate an aircraft over a congested
area except in accordance with the requirements of
this paragraph.
(1) Prior written approval must be obtained from
the appropriate official or governing body of the
political subdivision over which the operations
are conducted.
(2) Notice of the intended operation must be
given to the public by some effective means, such
as daily newspapers, radio, television, or door-
to-door notice.
(3) A plan for each complete operation must be
submitted to, and approved by appropriate
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personnel of the FAA Flight Standards District
Office having jurisdiction over the area where
the operation is to be conducted. The plan must
include consideration of obstructions to flight;
the emergency landing capabilities of the
aircraft to be used; and any necessary
coordination with air traffic control.
Id. § 137.51. Subsection (b) further provides: “No person may
operate any multiengine aircraft over a congested area below the
altitudes prescribed in Part 91 of this chapter except during
the actual dispensing operation, including the approaches,
departures, and turnarounds necessary for that operation.” Id.
§ 137.51(b)(5)(iii). 1
The regulations never define “congested area” or “other
than congested area.” At the relevant time, the FAA Inspectors’
Handbook 8700.1 provided the only guidance:
H. Considerations for Congested Area Determinations.
The term congested area has been applied on a case by
case basis since it was first used. No precise
mathematical or geographic definition has been
developed. The rule is clear that the congested area
must be an area of a city, town, or settlement.
However, some guidelines have been developed to assist
in interpretation:
(1) The purpose of the rule is to provide minimum
safe altitudes for flight and to provide adequate
protection to persons on the ground. The
following areas were determined to be congested
by the Civil Aeronautics Board, in past cases:
1
Section 137.51(b)(5)(iii) rebuts Petitioners’ argument
that section 91.119 was never intended to apply to agricultural
aircraft.
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(a) Approximately 10 houses and a school,
(b) the campus of a university,
(c) a crowded beach area along a highway,
and
(d) a boy’s camp where numerous people were
on the docks and the shore.
(2) The presence of people is important to the
determination of whether an area is “congested.”
(3) The term is administered to prohibit over
flights that cut the corners of large, heavily
congested, residential areas.
(4) No definition has been constructed, which
determines the allowable number of people, the
amount of ground traffic, the proximity of
buildings to each other, the number of buildings
or residences, or other conditions that exist in
a particular area, to both protect persons or
property on the ground and allow agricultural
aircraft operations to take place.
J.A. 216. The Handbook added, regarding section 137.49, that
where “the pilot of an agricultural aircraft dispenses an
economic poison on a field adjacent to a farmhouse,” he “may
operate less than 500 feet above the surface or closer than 500
feet to the house provided the house or its occupants are not
exposed to hazard from the aircraft or the chemicals.” J.A.
216.
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Petitioners contend that section 137.49 applies here
because they flew over a non-congested area. 2 By contrast, the
FAA contends that section 137.51 applies because they flew over
a congested area. Thus the question before the ALJ was whether
the relevant area was congested for purposes of section 137.51.
B.
Petitioners argue that because the term “congested area”
does not have a clear meaning, section 137.51 violates the
vagueness doctrine under the Due Process Clause. We review this
issue de novo. 3 See United States v. Williams, 364 F.3d 556, 559
(4th Cir. 2004).
2
We note, but need not decide, that section 137.49 may not
have assisted Petitioners even if the relevant area had not been
congested. One witness testified before the ALJ that one of the
relevant flights caused a “loud rumble” in his house that
sounded like “someone had hit [the] house.” S.J.A. 12. When
the resident of the house went outside to investigate, the plane
flew over him four different times at an altitude of about 100
to 300 feet. The witness testified that he did not “feel safe
having a plane flying at such altitude over [his] residence.”
S.J.A. 16-17. These circumstances might have been interpreted
as “creating a hazard to persons or property on the surface”
under section 137.49. 14 C.F.R. § 137.49.
3
Notably, the Board would have lacked jurisdiction to
entertain Petitioners’ constitutional challenge to “congested
area” in section 137.51. See Adm’r v. Eby, 3 N.T.S.B. 614, 615
(N.T.S.B. 1977) (“With respect to respondent’s attack on the
regulations as unconstitutionally vague (due to the absence of a
definition of ‘congested area’), the Board has consistently held
that it lacks jurisdiction to entertain attacks on the validity
of the [Federal Aviation Regulations].”).
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Petitioners must show that the relevant section was
impermissibly vague as applied to them. 4 We have explained the
relevant test as follows:
A statute is impermissibly vague if it either (1)
fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it
prohibits or (2) authorizes or even encourages
arbitrary and discriminatory enforcement. . . .
Stated differently, a court considering a vagueness
challenge must determine if the statutory prohibitions
are set out in terms that the ordinary person
exercising ordinary common sense can sufficiently
understand and comply with.
United States v. Whorley, 550 F.3d 326, 333 (4th Cir. 2008)
(internal quotations and citations omitted). The Supreme Court
has explained that under certain circumstances this test should
be applied less stringently:
These standards should not, of course, be mechanically
applied. The degree of vagueness that the
Constitution tolerates -- as well as the relative
importance of fair notice and fair enforcement --
depends in part on the nature of the enactment. Thus,
economic regulation is subject to a less strict
vagueness test because its subject matter is often
more narrow, and because businesses, which face
economic demands to plan behavior carefully, can be
4
We assume, for purposes of our analysis, that Petitioners
are bringing an as-applied challenge to section 137.51.
Petitioners do not make clear whether they are bringing a facial
or an as-applied challenge. However, a facial challenge appears
inapplicable in this case. To make out a facial challenge,
Petitioners would have to “demonstrate that the law is
impermissibly vague in all of its applications.” Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 497 (1982). That cannot be done here because “congested
area” plainly covers densely populated urban settings.
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expected to consult relevant legislation in advance of
action. Indeed, the regulated enterprise may have the
ability to clarify the meaning of the regulation by
its own inquiry, or by resort to an administrative
process. The Court has also expressed greater
tolerance of enactments with civil rather than
criminal penalties because the consequences of
imprecision are qualitatively less severe.
Vill. of Hoffman Estates, 455 U.S. at 498-99 (footnote call
numbers omitted); see Greenville Women’s Clinic v. Comm’r, S.C.
Dep’t of Health & Envtl. Control, 317 F.3d 357, 366 (4th Cir.
2002).
Petitioners cannot show that they lacked “a reasonable
opportunity to understand what conduct [section 137.51]
prohibits.” Whorley, 550 F.3d at 333 (quotations and citation
omitted). Because Towers warned that two or three houses may be
considered a congested area, Petitioners had reason to believe
that the residential area near the intersection of Swan Pond
Road and Hollida Lane might be congested. They could have
resolved any doubt by filing a congested area plan for that
intersection and waiting for Towers’s response. Furthermore,
Petitioners have not tried to show that section 137.51
“authorizes or even encourages arbitrary and discriminatory
enforcement,” nor have they presented any evidence that the
enforcement action against them was arbitrary. Id. (quotations
and citation omitted). Therefore, Petitioners have failed to
show that section 137.51 is unconstitutionally vague.
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C.
We next consider the ALJ’s and Board’s determination that
Petitioners flew over a congested area. The decision below must
be set aside if that determination is “unsupported by
substantial evidence.” 5 U.S.C. § 706(2)(E); see North Carolina
v. Fed. Aviation Admin., 957 F.2d 1125, 1128 (4th Cir. 1992).
Substantial evidence is “‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’”
Platone v. U.S. Dep’t of Labor, 548 F.3d 322, 326 (4th Cir.
2008) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197,
229 (1938)).
In this case, the Board made clear that the question of
what constitutes a “congested area” involves a case-by-case
inquiry that considers all relevant circumstances:
The term “congested area” will continue to be
adjudicated on a case-by-case basis before this Board.
The determination must take into consideration all
circumstances, not only the size of an area and the
number of homes or structures, but, for example,
whether the buildings are occupied or people are
otherwise present, such as on roads.
J.A. 276-77. This approach is consistent with the Board’s prior
case law. See Eby, 3 N.T.S.B. at 615 (determining that an area
was congested after “[c]onsidering the size of the area and the
number of homes, and the corresponding density of residences,
and after viewing the aerial photographs”). Therefore, we must
determine whether substantial evidence supports the ALJ’s and
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Board’s finding that, given all relevant circumstances, the area
near the intersection of Swan Pond Road and Hollida Lane was
congested.
After carefully reviewing the record, we note that
approximately thirty houses are located in the general vicinity
of that intersection. The record further shows that
Petitioners’ flights passed over corner sections of that area.
We therefore conclude that the area over which Petitioners flew
could reasonably be considered congested based on substantial
evidence in the record.
III.
For the reasons stated above, we
AFFIRM.
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