No. 07-373: Clark County v. Vacation Vill., Inc.

No. 07-373

In the Supreme Court of the United States

CLARK COUNTY, NEVADA, PETITIONER

VACATION VILLAGE, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

PAUL D. CLEMENT
Solicitor General
Counsel of Record
RONALD J. TENPAS
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor
General
KATHERINE J. BARTON
KATHRYN E. KOVACS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

D.J. GRIBBIN
General Counsel
PAUL M. GEIER
Assistant General Counsel
for Litigation
DALE C. ANDREWS
Deputy Assistant General
Counsel for Litigation
KERRY B. LONG
Chief Counsel
MARC WARREN
Deputy Chief Counsel for
Operations
Federal Aviation
Administration
Department of Transportation
Washington, D.C. 20590

QUESTION PRESENTED

Respondents are the former owners of land near McCarran International Airport in Nevada. They filed suit against petitioner, the airport operator. Respon dents contended that newly-enacted restrictions on the height of structures that could be erected on their pro perty, designed to facilitate the use of airspace above their land for takeoff and landing of aircraft, constituted a taking of their property that required the payment of just compensation. The court of appeals held that the restrictions did not effect a compensable taking under federal standards, but that respondents had established a compensable taking under Nevada law, and that feder al aviation statutes do not preempt that state-law com pensation requirement. The question presented is as follows:

Whether federal law preempts the state-law award of just compensation ordered by the court of appeals in this case.

In the Supreme Court of the United States

No. 07-373

CLARK COUNTY, NEVADA, PETITIONER

VACATION VILLAGE, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court's order inviting the Solicitor General to express the views of the United States. In the view of the United States, the pe tition for a writ of certiorari should be denied.

STATEMENT

1. a. In the Air Commerce Act of 1926 (ACA), ch. 344, § 6, 44 Stat. 572, Congress "declare[d] that the Gov ernment of the United States has, to the exclusion of all foreign nations, complete sovereignty of the airspace over the lands and waters of the United States, includ ing the Canal Zone." The ACA further stated that "nav igable airspace shall be subject to a public right of free dom of interstate and foreign air navigation." Id. § 10, 44 Stat. 574. Federal law currently provides that "[t]he United States Government has exclusive sovereignty of airspace of the United States," 49 U.S.C. 40103(a)(1), and that citizens of the United States have "a public right of transit through the navigable airspace," 49 U.S.C. 40103(a)(2).

Congress originally defined the term "navigable air space" as "airspace above the minimum safe altitudes of flight prescribed by the Secretary of Commerce." ACA § 10, 44 Stat. 574; see United States v. Causby, 328 U.S. 256, 263 (1946). In Causby, this Court held that "navi gable airspace" as so defined did not extend downward to include the "path of glide"-i.e., the path of an air plane to or from the ground during landing or takeoff. Ibid.; see Griggs v. Allegheny County, 369 U.S. 84, 88 (1962). Congress subsequently amended the definition of "navigable airspace" to include "airspace needed to insure safety in take-off and landing of aircraft." Fed eral Aviation Act of 1958, Pub. L. No. 85-726, § 101(24), 72 Stat. 739; see Griggs, 369 U.S. at 88; 49 U.S.C. 40102(a)(32) (Supp. V 2005) (current definition of "navi gable airspace"). Federal regulations have long speci fied the "minimum safe altitudes" for flight as 1000 feet above the highest obstacle in congested areas and 500 feet above the surface in other areas. 14 C.F.R. 91.119(b) and (c). No federal regulation defines the scope of the "navigable airspace" that is "needed to en sure safety in the takeoff and landing of aircraft." 49 U.S.C. 40102(a)(32) (Supp. V 2005).

b. Persons who propose "construction, alteration, establishment, or expansion" of a structure more than 200 feet above ground level or within a specified proxim ity to an airport must notify the Federal Aviation Ad ministration (FAA). See 49 U.S.C. 44718; 14 C.F.R. 77.13. Upon receipt of such notice, the FAA conducts an aeronautical study "to decide the extent of any adverse impact on the safe and efficient use of the airspace." 49 U.S.C. 44718(b). The FAA then issues "a determina tion as to whether the proposed construction or alter ation would be a hazard to air navigation." 14 C.F.R. 77.35(c). Those "hazard determinations" are advisory and have no legally enforceable effect. See AOPA v. FAA, 600 F.2d 965, 966 (D.C. Cir. 1979). The FAA does not have the legal authority to prohibit construction that it deems a hazard to air navigation. Id. at 967.

Rather, under the federal statutory scheme, airport operators (like the local governmental unit that is the petitioner in this case) are responsible for preventing hazards to airport operations. Federal law seeks "to ensure that nonaviation usage of the navigable airspace be accommodated but not allowed to decrease the safety and capacity of the airspace and airport system." 49 U.S.C. 47101(a)(8). Accordingly, recipients of federal airport development grants must provide written assur ance that they will take "appropriate action" to ensure that airspace needed for airport operations "will be cleared and protected by mitigating existing, and pre venting future, airport hazards." 49 U.S.C. 47107(a)(9). Grant recipients must also promise that "appropriate action, including the adoption of zoning laws, has been or will be taken to the extent reasonable to restrict the use of land next to or near the airport to uses that are compatible with normal airport operations." 49 U.S.C. 47107(a)(10). Grant recipients are authorized to use fed eral funds to acquire "property interests in land or air space." 49 U.S.C. 47110(c)(1).

2. Since the 1940s, petitioner Clark County has op erated what is now known as McCarran International Airport (McCarran) and has used its zoning laws to reg ulate use of the surrounding land and airspace. Pet. App. 4a, 42a. In 1964, respondents purchased a parcel of land approximately 2600 feet from the end of one of the airport's runways. Id. at 4a, 36a. In 1981, petitioner enacted Ordinance 728, which limited the height of structures near the airport using a slope of twenty feet outward for every foot upward (which the parties refer to as a "'20:1' slope surface"). Id. at 5a. On respon dents' parcel, Ordinance 728 limited buildings to be tween 74 and 104 feet above ground level. Id. at 42a. In 1988, petitioner granted respondents a permit "to con struct and maintain a 501-room, two-story hotel, and an 85,000-square foot casino." Id. at 6a. Respondents' plans included a sign 80 feet high, a casino 47 feet high, five hotel buildings 28 feet high, and three hotel build ings 76 feet high. Id. at 39a.

Subsequently, however, petitioner proposed to change the runway nearest respondents' parcel to allow for precision instrument approach, which necessitated lowering the slope of the approach path from 20:1 to 50:1. Pet. App. 40a. In January 1990, the FAA deter mined that respondents' planned construction would constitute a hazard to air navigation in light of the low ered approach path. Id. at 6a. Respondents agreed to lower the height of their project to 38 feet, and the FAA determined in June 1990 that the project as described in the revised proposal "would not adversely affect the safe and efficient use of navigable airspace." Ibid.; see id. at 41a. In July 1990, petitioner enacted Ordinance 1221, which imposed height restrictions using a 50:1 slope in the instrument runway approach zone and had the effect of limiting structures on respondents' parcel to between five and 25 feet above ground level. Id. at 6a, 42a. Ordi nance 1221 also provided, however, that structures up to 35 feet were allowed in any zone. Id. at 42a.

3. a. In December 1993, respondents filed suit against petitioner in Nevada state court. Pet. App. 7a. Respondents' complaint alleged, inter alia, that Ordi nance 1221 effected an inverse condemnation of the air space above their tract. Ibid. In 1997, respondents filed in federal court a petition for bankruptcy under Chapter 11, listing their inverse-condemnation claim against pe titioner as a contingent and unliquidated claim of the estate. Ibid. Respondents subsequently removed their takings claims to the federal bankruptcy court. Id. at 8a.

Following a bench trial, the bankruptcy court en tered judgment for respondents, awarding them $4,886,779 plus interest, costs, and fees for the taking of airspace "between the 20:1 approach and the lower 50:1 precision instrument approach path instituted after the airport expansion." Pet. App. 27a. The court based the award on its conclusion that respondents' parcel was worth $10.00 per square foot before the enactment of Ordinance 1221 and $5.50 afterwards, and by multi plying the $4.50 per-square-foot difference by the tract's total area (1,085,951 square feet). Ibid. The dis trict court subsequently entered judgment for respon dents in a total amount (including fees and interest) of $10,121,686. Id. at 9a.

b. While petitioner's appeal was pending in the Ninth Circuit, the Nevada Supreme Court issued its decision in McCarran Int'l Airport v. Sisolak, 137 P.3d 1110 (2006), cert. denied, 127 S. Ct. 1260 (2007). As in the instant case, the plaintiff in Sisolak contended that height restrictions imposed by petitioner under Ordin ance 1221 and a related Ordinance 1599 to facilitate takeoffs and landings at McCarran effected a taking of property that required the payment of just compensa tion. The Nevada Supreme Court agreed, concluding that, "[b]ecause the height restriction ordinances autho rize airplanes to make a permanent, physical invasion of the landowner's airspace, * * * a Loretto-type regula tory per se taking occurred, requiring an award of just compensation." Id. at 1114 (footnote omitted) (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)).

The Nevada Supreme Court in Sisolak stated that, for purposes of federal constitutional analysis under Griggs, "although airplanes may fly below 500 feet when necessary for takeoff and landing, this right does not divest the property owner of his protected property right to his usable airspace. Rather, a landowner may still make a claim for compensation for the government's use of that airspace." 137 P.3d at 1119 (footnotes omit ted). The court further concluded that under Nevada law, landowners "hold a property right in the usable airspace above their property up to 500 feet." Id. at 1120. The court held that the ordinances effected a tak ing under both the federal and state constitutions. See id. at 1120, 1124, 1126-1127. The state court accordingly affirmed a jury verdict under which just compensation had been computed by subtracting the value of the prop erty after the height restrictions were imposed under Ordinances 1221 and 1599 from the value of the land prior to adoption of those ordinances. See id. at 1118, 1127-1128, 1130.

4. Relying on the Nevada Supreme Court's decision in Sisolak, the court of appeals in this case held that Ordinance 1221 had effected a taking of respondents' property under Nevada law. Pet. App. 1a-25a. The Ninth Circuit "respectfully disagree[d]" with the Sisolak court's "interpretation of federal takings jurispru dence," and it concluded that "[n]o Fifth Amendment taking of [respondents'] property occurred." Id. at 18a. The court held, however, that it was bound by the Ne vada Supreme Court's interpretation of the state consti tution. Id. at 18a-19a. Relying on Jankovich v. Indiana Toll Road Comm'n, 379 U.S. 487 (1965), the court re jected petitioner's contention that the state-law compen sation requirement announced in Sisolak was preemp ted by federal statutes governing aviation. Pet. App. 19a-20a.

The court of appeals further held that the district court's calculation of just compensation was premised on an interpretation of certain avigation easements that was inconsistent with Sisolak's treatment of comparable easements under state law. Pet. App. 22a. Accordingly, the court vacated the judgment and remanded for recon sideration of the just-compensation award in light of Sisolak. Id. at 25a. The court explained that, under Sisolak, "just compensation is measured by the fair mar ket value of the condemned property," which in turn is "determined by reference to the highest and best use for which the land is available," so long as "the highest and best use [is] 'reasonably probable,'" considering zoning ordinances that would be taken into account by a pru dent and willing buyer. Id. at 22a-23a (quoting Sisolak, 137 P.3d at 1128).

DISCUSSION

A. States Are Generally Free To Accord Protections Under Their State Constitutions That Are More Extensive Than The Federal Constitution Requires

As a general matter, "the views of the State's highest court with respect to state law are binding on the federal courts," including on this Court. Wainwright v. Goode, 464 U.S. 78, 84 (1983) (per curiam). A narrow exception to that rule applies if the state court's interpretation of state law reflects the perception that federal law com pels that reading. See, e.g., Michigan v. Long, 463 U.S. 1032, 1038 n.4 (1983) (per curiam); Delaware v. Prouse, 440 U.S. 648, 652-653 (1979); Pet. App. 18a. In this case, however, the court of appeals found that the Nevada Supreme Court's state-law ruling in Sisolak provided an independent ground of decision and was not based on the perceived compulsory force of federal takings prece dents. See id. at 18a-19a. Petitioner does not challenge that aspect of the Ninth Circuit's decision.

A State ordinarily "may grant its citizens broader protection than the Federal Constitution requires by enacting appropriate legislation or by judicial interpre tation of its own Constitution." Danforth v. Minnesota, 128 S. Ct. 1029, 1046 (2008); see, e.g., Cooper v. Califor nia, 386 U.S. 58, 62 (1967). The takings context is no ex ception. Indeed, this Court has recognized that a State may impose limits on takings of private property by lo cal governments that are stricter than the limits estab lished by the Fifth Amendment. See Kelo v. New Lon don, 545 U.S. 469, 489 & nn.22-23 (2005). Consistent with those decisions, petitioner recognizes (Pet. 18) that "States may generally afford greater constitutional pro tection to property rights than the federal constitution does."

Petitioner contends, however, that this general rule is inapplicable to local ordinances that are designed to prevent obstructions to "navigable airspace" as defined in federal law. In petitioner's view, federal aviation stat utes broadly preempt state authorities from requiring compensation in this setting except where compensation is required by the Fifth Amendment. See, e.g., Pet. 14, 17, 18, 26. While Congress presumably could enact stat utes expressly adopting this relatively complicated rule for preemption of state takings law, petitioner does not contend that Congress has done so. Rather, petitioner relies on principles of implied conflict preemption, under which federal law preempts state law where compliance with both federal and state law is impossible or where state law poses an obstacle to accomplishing the full pur poses and objectives of Congress as expressed in a stat ute. See, e.g., United States v. Locke, 529 U.S. 89, 109 (2000); Geier v. American Honda Motor Co., 529 U.S. 861, 873 (2000). For the reasons that follow, petitioner's arguments lack merit.

B. Petitioner's Broad Preemption Theory Cannot Be Rec onciled With This Court's Decision In Jankovich

1. In Jankovich, this Court considered a land owner's challenge to a municipal ordinance that, by re stricting the height of structures on land near an air port, precluded the operation of the plaintiff's raised toll road. See 379 U.S. at 488. The Indiana Supreme Court held that the ordinance was invalid because it "pur ported to authorize an unlawful and unconstitutional appropriation of property rights without payment of compensation." Id. at 489 (quoting Indiana Toll Rd. Comm'n v. Jankovich, 237 N.E.2d 237, 242 (Ind. 1963)). That holding was based in part on the state court's hold ing that Indiana landowners "have a protected property interest in the airspace above their land." Id. at 490; see id. at 490-491.

This Court dismissed the writ of certiorari as im providently granted, holding that the Indiana Supreme Court's ruling rested on an independent and adequate state ground because it was based in part on the Indiana constitution. Jankovich, 379 U.S. at 489-492. The Court rejected the municipality's contention "that the state ground of decision is not adequate because it is inconsis tent with the policy of the Federal Airport Act." Id. at 492. The Court recognized that a then-recent amend ment to the Airport Act required airport authorities to take "appropriate action, including the adoption of zon ing laws," to restrict uses of adjacent land that would impede aircraft takeoffs and landings. Id. at 494 (quot ing the Federal Airport Act Amendments of 1964, Pub. L. No. 88-280, § 10(1), 78 Stat. 161). It observed, how ever, that the FAA, in implementing that requirement, had allowed airport operators to prevent such hazards either by acquiring easements or other interests in adja cent land, or by adopting zoning ordinances. Ibid. The Court "conclude[d] that the decision of the Supreme Court of Indiana in this case is compatible with the con gressional policy embodied in the Federal Airport Act." Id. at 494-495.1

As the court of appeals recognized (Pet. App. 19a- 20a), petitioner's broad theory of preemption cannot be reconciled with this Court's decision in Jankovich. If (as petitioner contends) a State's power in this area were limited to height restrictions that effected a federal tak ing, this Court could not have concluded that the state court's takings analysis was "compatible with the con gressional policy embodied in the Federal Airport Act," Jankovich, 379 U.S. at 495, while simultaneously "ex press[ing] no opinion * * * regarding the validity un der the United States Constitution of the city's airport zoning ordinance," id. at 495 n.3. The decision in Jank ovich clearly reflects a determination by this Court that States have at least some authority to require compen sation for airport-area height restrictions that would not necessarily effect a taking under federal law.

2. Petitioner observes (Pet. 25) that the Court in Jankovich did not address the possible preemptive ef fect of the federal statutory provisions on which peti tioner principally relies-viz., 49 U.S.C. 40102(a)(32) (Supp. V 2005), which defines the "navigable airspace" to include "airspace needed to ensure safety in the take off and landing of aircraft"; 49 U.S.C. 40103(a)(1), which states that "[t]he United States Government has exclu sive sovereignty of airspace of the United States"; and 49 U.S.C. 40103(a)(2), which states that a "citizen of the United States has a public right of transit through the navigable airspace." At the time Jankovich was decid ed, however, those statutory provisions existed in essen tially their current form. And while the municipality's preemption argument in Jankovich focused on the Air port Act, see 379 U.S. at 493, this Court stated more broadly that "no substantial claim can be made that Congress intended to preclude such an application of state law as is involved in the present case," id. at 494. That more generic formulation was consistent with the memorandum filed by the United States, which stated (see note 1, supra) that "[t]here is no basis for a conten tion that federal law removes State law restrictions on the exercise of the zoning power or defeats any State law right to compensation." This Court should not light ly conclude that the petitioners, the United States, and the Court in Jankovich all overlooked a dispositively preemptive federal statute in addressing a preemption question that was not substantively different from the one presented here. That is particularly so because the statutory provisions that the Court considered in Jank ovich, unlike the provisions on which petitioner relies, directly address the process by which airport operators acquire property needed for airport construction or ex pansion or regulate that property to facilitate takeoffs and landings.

In any event, the state-law right of compensation recognized in Sisolak and applied in this case does not conflict with the statutory provisions on which petitioner relies. In Braniff Airways, Inc. v. Nebraska State Board of Equalization & Assessment, 347 U.S. 590 (1954), the Court held that the statutory predecessor to current 49 U.S.C. 40103(a)(1) "was an assertion of exclu sive national sovereignty" but "did not expressly exclude the sovereign powers of the states." Id. at 595. Rather than defining the boundary between state and federal power, Section 40103(a)(1) declares the sovereignty of the United States, to the exclusion of other nations, over the "airspace of the United States." See Skysign Int'l, Inc. v. City & County of Honolulu, 276 F.3d 1109, 1116 (9th Cir. 2002); Vorhees v. Naper Aero Club, Inc., 272 F.3d 398, 404 (7th Cir. 2001).

Nor does the compensation remedy at issue in this case conflict with the statutory right of United States citizens (see 49 U.S.C. 40103(a)(2)) to travel through the navigable airspace. The determination whether particu lar airspace is "needed to ensure safety in the takeoff and landing of aircraft," 49 U.S.C. 40102(a)(32) (Supp. V 2005), and is therefore part of "navigable airspace" as defined by federal law, necessarily depends on the loca tion of airports and the manner of their operations. The expansion of an existing airport, or the modification of its operations (like the shift from a 20:1 to a 50:1 ap proach path in this case), will often cause the statutory definition to encompass airspace that was not previously covered. The compensation requirement announced in Sisolak pertains to the process by which particular air space becomes part of the "navigable airspace" as a re sult of changes in airport operations. State-mandated compensation for property taken during that process does not, in and of itself, conflict with the public right of transit through the "navigable airspace" once those changes have been accomplished.

C. Although State-Law Restrictions On Airport Zoning Might Under Some Circumstances Raise Significant Preemption Concerns, This Case Is Not A Suitable Vehi cle For Determining The Applicable Limits On State Authority

The Court in Jankovich observed that the state court's opinion in that case did "not portend the whole sale invalidation of all airport zoning laws." 379 U.S. at 493. The Court concluded that "no substantial claim can be made that Congress intended to preclude such an application of state law as is involved in the present case." Id. at 494 (emphasis added). Jankovich thus leaves open the possibility that some state-law restric tions on airport zoning might be so extreme, disruptive, or discriminatory as to create a conflict with federal law. In two respects, the Nevada Supreme Court's decision in Sisolak is unclear, but may raise concerns that could (depending on how that court clarifies the applicable state-law standard in subsequent cases) ultimately cre ate substantial preemption questions.

First, the Nevada Supreme Court in Sisolak en dorsed the trial court's finding that "the presence of air craft over Sisolak's property at altitudes below 500 feet, as permitted by [petitioner's height-restriction] Ordi nances, constituted a permanent physical invasion of his property and was sufficient to establish a taking." 137 P.3d at 1125. That language suggests that the Nevada Supreme Court might find a taking whenever a privately owned tract is subject to recurring overflights at alti tudes lower than 500 feet, even in the absence of any di minution of the owner's use and enjoyment of the subjacent land or its value. On the other hand, the court in Sisolak repeatedly stressed-including in the passage just quoted-that its finding of a taking depended on the existence of ordinances that both imposed height re strictions and (as the court saw it) affirmatively autho rized a physical invasion of the airspace above the height limits as a matter of state law. Id. at 1114, 1130. It therefore is unclear whether mere overflights, unaccom panied by such an ordinance, would trigger per se taking analysis under the decision in Sisolak. Moreover, whether or not the existence of such an ordinance is a prerequisite to application of Sisolak's rationale, it is unclear what (if any) compensation the Nevada Supreme Court would order in the hypothetical circumstance just posited. But if the state court awarded significant mon etary relief based on the fact of overflights alone, with out evidence that the overflights had materially reduced the value of the subjacent property, its decision might be viewed as the functional equivalent of a state-law pen alty or tax on the operation of the airport. Such a state- law holding would raise significant preemption concerns. Cf. 49 U.S.C. 40116(b) (providing that a State or political subdivision "may not levy or collect a tax, fee, head charge, or other charge" on the transportation of indi viduals in air commerce).

Second, while holding that Ordinance 1221 effected a per se taking, the Nevada Supreme Court in Sisolak observed that, "[l]ike most property rights, the use of the airspace and subadjacent land may be the subject of valid zoning and related regulations which do not give rise to a takings claim." 137 P.3d at 1120 n.25. This pas sage suggests that the court might not have found a tak ing if the height limitation had been significantly higher, but less than 500 feet, perhaps on the theory that the airspace above that higher limitation was not "useable" as a practical matter. See id. at 1121 (stating that the plaintiff landowner "has a property interest in the use able airspace above his property up to 500 feet"); see also id. at 1119. The court also may have left open the possibility that petitioner could have imposed height restrictions upon the plaintiff landowner equivalent to those under Ordinance 1221, without incurring an obli gation to pay compensation, if the restrictions were in tended to serve purposes other than airport safety. To the extent that comparable height restrictions placed on a near-airport landowner are accompanied by actual overflights that result in a reduction of the property's value beyond that caused by the height restrictions alone, those overflights might provide a valid basis for distinguishing the affected landowner from a plaintiff whose tract is subject to equivalent height restrictions under a zoning law serving different purposes. But if the Nevada courts were to treat Ordinance 1221 as a per se taking without regard to the occurrence or economic effect of actual overflights above particular tracts, the Sisolak rule might be viewed as a form of discrimination against zoning designed to accommodate airport expan sion under the federal program, thereby raising signifi cant preemption concerns.

Jankovich therefore need not and should not be read to hold that federal law places no constraints on a State's ability to require compensation for airport-re lated zoning. This case, however, provides an unsuitable vehicle for clarifying the possible limits on state author ity. As just explained, it is unclear whether Nevada courts would actually order a monetary payment in the absence of a measure such as Ordinance 1221, or to a plaintiff whose land was subject to Ordinance 1221 but who failed to establish that the airspace through which there were overflights was useable or that any actual overflights had an adverse impact on the property's value. Although the court in Sisolak held that proof of recurring overflights at altitudes below 500 feet was sufficient to establish a taking, 137 P.3d at 1125; see id. at 1116-1117 (noting that the plaintiff landowner in that case introduced evidence that "approximately 100 planes per day used his airspace at altitudes below 500 feet"), the court also emphasized that just compensation is measured by reference to the value of the taken prop erty, see id. at 1128. The Nevada Supreme Court might therefore conclude that, where recurring overflights do not affect the value of the subjacent land, the just com pensation owed is zero. See Brown v. Legal Found., 538 U.S. 216, 235-236, 240 (2003) (explaining that, because "the 'just compensation' required by the Fifth Amend ment is measured by the property owner's loss rather than the government's gain," no compensation is owed for a per se taking that causes no pecuniary harm to the property owner).

In any event, this case does not present the question whether compensation for overflights could appropri ately be ordered absent proof of actual economic harm. The district court found that respondents had "shown that the increased frequency of flights of large general aviation aircraft over [their] property * * * directly, substantially, and immediately interfered with the en joyment and use of [their] property," Pet. App. 54a, and the court calculated the amount of just compensation owed by determining the extent to which Ordinance 1221 had reduced the value of the subjacent land, see id. at 27a, 32a. Although the court of appeals remanded the case for recalculation of damages, the Ninth Circuit like wise emphasized that "just compensation is measured by the fair market value of the condemned property," which is "determined by reference to the highest and best use for which the land is available" so long as that use is "reasonably probable." Id. at 22a-23a (quoting Sisolak, 137 P.3d at 1128). Petitioner is therefore wrong in seek ing to distinguish Jankovich on the ground that "the Jankovich property owner asserted a traditional takings claim-i.e., that a zoning restriction deprived it of the use of its land"-whereas respondents "were compen sated for loss of a state law right to exclusive ownership of all navigable airspace up to 500 feet above their land." Pet. 24, 25. Because the compensation award in this case was premised on evidence of a substantial diminu tion in the value of petitioner's tract, and because the amount of the award is to be calculated by reference to that diminution, the rationale for takings liability here is not fundamentally different from the landowner's the ory in Jankovich.

Finally, although petitioner asserts that the compen sation requirement announced in Sisolak will have par ticularly disruptive effects on the national aviation sys tem, petitioner's legal theory does not turn on the extent of the economic impact that the challenged state-law rule can be expected to entail. Rather, petitioner argues that States have no authority to require compensation for height restrictions or associated overflights that do not effect a federal-law taking. The Court in Jankovich unequivocally rejected that proposition, and there is no need for the Court to revisit that holding now.

D. Petitioner Has Failed To Demonstrate That The State- Law Compensation Requirement Applied In This Case Will Disrupt The Federal Aviation Regime

Petitioner contends that the state-law rule applied by the Ninth Circuit in this case will disrupt the national aviation system by (1) creating financial disincentives to airport expansion and improvement (Pet. 19-22) and (2) granting subjacent landowners a right to "exclude" oth ers from the navigable airspace (Pet. 18, 26, 29). Those arguments provide no basis for finding preemption in this case.

1. The federal statutory scheme does not suggest that States are categorically preempted from imposing financial prerequisites to airport construction or expan sion that go beyond those contained in the federal Con stitution. See Jankovich, 379 U.S. at 494. Under the federal regime, airport operators may use both "zoning" (49 U.S.C. 47107(a)(10)) and the acquisition of "property interests in land or airspace" (49 U.S.C. 47110(c)(1)) to ensure that nearby property is not used in a manner that impedes airport operations. In administering fed eral airport funding programs, the FAA encourages air port operators to reduce costs by relying to the maxi mum permissible extent on uncompensated zoning, rath er than on the acquisition of fee or easement interests, to prevent hazards to airport operations. See, e.g., FAA, U.S. Dep't Transp., Order 5100.38C, Airport Improve ment Program Handbook para. 701(b)(2), at 122 (June 28, 2005) <http://www.faa.gov/airports_airtraffic/ airports/resources/publications/orders/media/aip_5100 _38c.pdf> (explaining that, in approach and transitional zones outside the Runway Protection Zone, "[u]nless there is a need for the land for future development or noise compatibility purposes, sponsors should be encour aged to acquire the minimum property interest neces sary to assure safe aeronautical use"). The FAA has issued a model zoning ordinance for possible enactment by local airport operators, which states that the preven tion of obstructions to air traffic "should be accom plished, to the extent legally possible, by the exercise of the police power without compensation." FAA Advisory Circular No. 150/5190-4A, A Model Zoning Ordinance to Limit Height of Objects Around Airports App. 3, at 1 (Dec. 14, 1987) <http://www.faa.gov/airports_airtraffic/ airports/resources/advisory_circulars/media/150-5190- 4A/150_5190_4A.pdf> (FAA Advisory Circular No. 150/5190-4A).

The FAA has recognized, however, that a local air port operator's ability to use zoning for these purposes may be constrained by state and local law as well as by the Just Compensation Clause of the federal Constitu tion. Some local governmental bodies that operate air ports, for example, lack the legal authority to engage in zoning or otherwise to restrict the uses of nearby off- airport property. Although the FAA encourages airport operators to make the maximum permissible use of whatever zoning authority they possess, and to adopt the model zoning ordinance (or some variant thereof) if it is within their power to do so, the agency has not taken the view that such state- or local-law limitations on an airport operator's zoning power are preempted by federal aviation statutes. To the contrary, the FAA's guidance appears to contemplate a diversity of state and local zoning and property-rights regimes. And the model zoning ordinance issued by the FAA cautions that "[a]ny height limitations imposed by a zoning ordinance * * * should not be so low at any point as to constitute a taking of property * * * under local law." FAA Ad visory Circular No. 150/5190-4A para. 5.d at 3 (empha sis added).

To be sure, the existence of a state-law regime re quiring compensation for what federal law would deem a permissible and non-compensable regulation may sometimes cause airports to be located in relatively in convenient venues, away from otherwise valuable prop erty. Much of the inconvenience of that state determina tion, however, will be visited locally. And, while there may be preemption in certain cases, see pp. 13-16, su pra, the federal statutory and regulatory scheme ap pears to contemplate variations among local property- rights regimes.

In addition, FAA guidance to airport operators spe cifically contemplates that state laws governing the ac quisition of land may sometimes require payments that exceed federal requirements:

State law may require a Sponsor to include with its market value appraisal, additional compensation for items required under state law. It is FAA policy that these costs exceed entitlements prescribed in Title 49 CFR, Part 24. Items generally held to be non-compensable in eminent domain include loss of business, payment for goodwill, frustration of devel opment plans, and other limitations described in the Uniform Appraisal Standards for Federal Land Ac quisitions as ineligible for Federal reimbursement. The Sponsor's review appraisal report must identify such items separate from the appraised market value for the acquired real property.

FAA Advisory Circular No. 150/5100-17, Land Acquisi tion and Relocation Assistance for Airport Improve ment Program (AIP) Assisted Projects Ch. 2-6, at 15 (Nov. 7, 2005) <http://www.faa.gov/airports_airtraffic/ airports/resources/advisory_circulars/media/150-5100- 17/150_5100_17_chg6.pdf> (Advisory Circular). That Advisory Circular thus recognizes that state law gov erning land acquisition for airport or other public pur poses sometimes requires payment for items that, under federal standards, would be "non-compensable in emi nent domain." Ibid. Rather than suggesting that such state-law requirements are preempted, however, the Advisory Circular simply warns that the additional ex penditures are "ineligible for Federal reimbursement." Ibid. Although the Advisory Circular does not specifi cally address the acquisition of airspace or the imposi tion of height restrictions to prevent obstacles to the safe takeoff and landing of aircraft, the guidance it pro vides is inconsistent with any categorical argument that the federal regime preempts all state-law compensation requirements that increase the cost of airport expansion above the federal constitutional minimum.

2. Petitioner errs in describing the decision in Sisolak as recognizing a right of subjacent landowners "to exclude the public from navigable airspace." Pet. 18; see Pet. 26, 29. In neither Sisolak nor this case did the plaintiffs seek an injunction that would prevent over flights through the airspace above their tracts. Rather, the plaintiffs in both cases sought compensation for height restrictions and associated authorization of over flights, based on evidence of diminution of the value of their lands. The Nevada Supreme Court evidently saw no contradiction between the provision of a monetary remedy and the proposition (which the state court un equivocally accepted) that airplanes traveling over the plaintiff's property "may fly below 500 feet when neces sary for takeoff and landing." Sisolak, 137 P.3d at 1119. The state court's recognition that a landowner has a property interest in usable airspace up to 500 feet, moreover, does not distinguish this case from Janko vich, where the Indiana Supreme Court likewise held that the plaintiff landowners "did have a protected prop erty interest in the airspace above their land." 379 U.S. at 490.

For purposes of the preemption question presented here, the relevant question is whether the state-law compensation requirement actually enforced in this case disrupts the federal aviation regime, not whether recog nition of a landowner's property interest in the super jacent airspace could as a theoretical matter imply a right to exclude. That pragmatic approach is especially appropriate because the basis for federal jurisdiction in this case was the bankruptcy power. The function of the courts below therefore was to supervise the division of the bankruptcy estate-not to pass on any question con cerning the potential further implications of the state- law right recognized in Sisolak.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
RONALD J. TENPAS
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor
General
KATHERINE J. BARTON
KATHRYN E. KOVACS
Attorneys

MAY 2008

1 As the Court in Jankovich explained, its preemption analysis was consistent with the position of the United States in that case. See 379 U.S. at 494. The United States' amicus memorandum, while disagree ing with the Indiana Supreme Court's analysis of federal constitutional law, explained (at 2 n.1):

[W]e note our disagreement with petitioner's argument that the State ground of decision was not adequate because a State law forbidding airport height-limitation zoning would in any event violate the Su premacy Clause (Pet. Br. 53-56). It may be true, as petitioners argue, that the Federal Airport Act assumes that "local power to zone ex ists," but the form of assurance completed by the grantee in this respect carefully requires only that it act "[i]nsofar as it is within its power" (Pet. Br. 28). There is no basis for a contention that federal law removes State law restrictions on the exercise of the zoning pow er or defeats any State law right to compensation.