The Clerk of the Court is directed to amend the official caption in accordance with… v. Dep’t of Envtl. Prot. et al. 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND…

*The Clerk of the Court is directed to amend the official caption in
accordance with this opinion.
10-516-cv
Goodspeed Airport v. Dep’t of Envtl. Prot. et al.
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
6
August Term, 2010 7
8
(Argued: January 10, 2011 Decided: February 10, 2011) 9
10
Docket No. 10-516-cv 11
12
13
G OODSPEED A IRPORT LLC, 14
15
Plaintiff-Appellant, 16
17
–v.– 18
19
E AST H ADDAM I NLAND W ETLANDS & W ATERCOURSES C OMMISSION , J AMES V ENTRES , 20
21
Defendants-Appellees, 22
23
S TATE OF C ONNECTICUT , 24
25
Amicus Curiae.*
26
27
28
Before: 29
P OOLER , K ATZMANN , and W ESLEY , Circuit Judges. 30
31
Appeal from judgment of the United States District Court 32
for the District of Connecticut (Kravitz, J.), entered on 33
January 13, 2010 after bench trial, in favor of Defendants- 34
Appellees, determining that the Connecticut Inland Wetlands 35
and Watercourses Act and the Connecticut Environmental 36

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Page 2 of 15
Protection Act, as well as municipal regulations pursuant 1
thereto (specifically the imposition of a permit requirement 2
on cutting trees on protected wetlands), are neither expressly 3
nor impliedly preempted by the Federal Aviation Act, the 4
Airline Deregulation Act, or Federal Aviation Agency 5
regulations promulgated thereunder. 6
7
A FFIRMED . 8
9
10
D EAN M. C ORDIANO , Day Pitney LLP, Hartford, CT (René 11
A. Ortega, John R. Bashaw, on the brief), for 12
Plaintiff-Appellant. 13
14
K ENNETH J. M C D ONNELL , Gould, Larson, Bennet, Wells & 15
McDonnell, P.C., Essex, CT, for Defendants- 16
Appellees. 17
18
M ARY K. L ENEHAN , Assistant Attorney General (for 19
Richard Blumenthal, Attorney General of the 20
State of Connecticut), Hartford, CT, for 21
Amicus Curiae. 22
23
24
WESLEY, Circuit Judge: 25
Plaintiff-Appellant Goodspeed Airport LLC appeals from a 26
judgment of the United States District Court for the District 27
of Connecticut (Kravitz, J.), entered after a bench trial, in 28
favor of Defendants-Appellees East Haddam Inland Wetlands and 29
Watercourses Commission and James Ventres. Goodspeed Airport 30
sought declaratory and injunctive relief establishing and 31
protecting its right to cut certain trees on its property, 32

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part of which is protected wetlands. Under Connecticut law 1
and municipal regulations, a person must apply for permission 2
to undertake activities affecting wetlands. We write to 3
clarify what to date this Court has suggested only in dicta: 4
that Congress has established its intent to occupy the entire 5
field of air safety, thereby preempting state regulation of 6
that field. However, the state and local laws and regulatory 7
scheme at issue in the instant appeal do not sufficiently 8
intrude upon the field of air safety to be preempted. Nor are 9
they expressly preempted by the Airline Deregulation Act. 10
Accordingly, the judgment of the district court is A FFIRMED . 11
12
I. BACKGROUND 13
14
The facts of this case, as well as the statutory and 15
regulatory context, are discussed at length in the district 16
court’s thorough and well-reasoned opinion. Goodspeed 17
Airport, LLC v. East Haddam Inland Wetlands & Watercourses 18
Comm’n (Goodspeed), 681 F. Supp. 2d 182 (D. Conn. 2010). We 19
discuss only those aspects of the case necessary to an 20
understanding of the issues presented on appeal. 21
Appellant Goodspeed Airport (the “Airport”) is a small, 22

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Page 4 of 15
state-licensed, privately owned and operated commercial 1
airport in East Haddam, Connecticut. Appellee James Ventres 2
is the enforcement officer for Appellee East Haddam Inland 3
Wetlands and Watercourses Commission (“IWWC”). 4
The IWWC is a municipal regulatory body established 5
pursuant to the Connecticut Inland Wetlands and Watercourses 6
Act (“IWWA”). The IWWA declares that it is “the public policy 7
of [Connecticut] to require municipal regulation of activities 8
affecting the wetlands and watercourses within the territorial 9
limits of the [state’s] various municipalities or districts.” 10
Conn. Gen. Stat. § 22a-42(a). The IWWC may issue cease and 11
desist orders and bring actions to enforce the act’s 12
provisions. Persons within its jurisdiction are required to 13
apply to the IWWC for permission before undertaking activities 14
affecting protected land. 15
The Airport’s property is partly composed of protected 16
wetlands. This protected land contains trees and other 17
vegetation which the Airport wishes to cut down. In January 18
2001, the IWWC issued Goodspeed a Cease and Desist Order (the 19
“Order”) instructing it to refrain from “all regulated 20
activity within seventy-five feet of inland/wetlands and 21
watercourses (regulated areas) on your property[.]” The Order 22

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1Appellees contend that, while the FAA Regulations provide a definition
of “obstructions,” obstructions are not ipso facto “hazards to air navigation”
absent a specific determination of that status by the FAA. We need not decide
whether the FAA Regulations would preempt the state and local laws,
regulations, and actions challenged here if the trees were declared hazards
and their removal ordered by the FAA. Significantly, in this case the federal
government renounced any intention – indeed, questioned whether it had the
authority – to declare the trees hazards and/or to order their removal.
Page 5 of 15
cited as its authority certain regulations of the Town of East 1
Haddam, adopted and promulgated under Connecticut General 2
Statute Section 22a. This Order was later withdrawn, but 3
Appellees continue to assert that the Airport is obliged to 4
obtain a permit before cutting the trees. 5
The Airport contends – and Appellees do not contest – 6
that some of the trees it wishes to cut down fall within the 7
definition of “obstructions to air navigation” under 14 C.F.R. 8
Part 77 (“FAA Regulations”). The FAA Regulations establish 9
standards for identifying these obstructions, defining an 10
imaginary surface in the shape of a bowl around regulated 11
runways. Id. § 77.23. Objects breaching this imaginary 12
surface are declared to be obstructions. 1 Id. 13
The Airport argues that, since these trees qualify as 14
obstructions, they are therefore hazards to air navigation 15
under the FAA Regulations and the otherwise applicable state 16
and local statutory and regulatory framework establishing the 17
IWWC’s permit process is preempted. Specifically, the Airport 18

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Page 6 of 15
contends it should be allowed to take whatever steps are 1
necessary to remove the trees without first applying for a 2
permit, and that both IWWA and the Connecticut Environmental 3
Protection Act (“CEPA,” codified at Conn. Gen. Stat. §§ 22a-14 4
to 22a-20) are preempted as to any restriction they might 5
otherwise impose on this activity. 6
The Airport offers two theories of preemption. First, it 7
argues that the state and local statutes, regulations and 8
actions pursuant to IWWA and CEPA are impermissible intrusions 9
upon a field of regulation which Congress (via the Federal 10
Aviation Act of 1958 (“Aviation Act”) and the FAA Regulations 11
promulgated thereunder) has indicated its intent to entirely 12
occupy. Second, the Airport argues for express preemption 13
pursuant to language in the Airline Deregulation Act of 1978 14
(“ADA”). 15
The Airport sought a declaratory judgment establishing 16
its right to cut down the trees without applying to the IWWC 17
for a permit. It also sought to enjoin the defendants from 18
bringing any action under state or local law to prohibit or 19
otherwise regulate the removal of any trees constituting 20

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2The Connecticut Environmental Protection Agency and one of its officers
were also named in the complaint. The district court found that the Airport
had failed to allege that the state defendants were involved in an ongoing
violation of or threatening to violate federal law; accordingly, they were
entitled to Eleventh Amendment immunity. Although the court urged the state
defendants not to exercise the privilege, they refused to waive it and the
claims against them were dismissed. Goodspeed Airport, LLC v. East Haddam
Inland Wetlands & Watercourses Comm’n, 632 F. Supp. 2d 185, 188, 189-90 (D.
Conn. 2009) (published ruling and order of dismissal). The State of
Connecticut later appeared as amicus curiae.
3“We review de novo a district court’s application of preemption
principles.” New York SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97,
103 (2d Cir. 2010) (per curiam). Findings of fact in a bench trial are
reviewed for clear error; application of law to those facts is reviewed de
novo. Bessemer Trust Co., N.A. v. Branin, 618 F.3d 76, 85 (2d Cir. 2010).
Page 7 of 15
obstructions to air navigation. 2 After a bench trial, the 1
district court ruled that neither theory of preemption was 2
established. Specifically, the district court found that, 3
while Congress in passing the Aviation Act intended to occupy 4
the entire field of air safety, the state and local statutes, 5
regulations and actions in question do not intrude into that 6
field and are therefore not field-preempted. Further, the 7
district court found no express preemption as a result of the 8
ADA language. The Airport timely appealed from this judgment. 9
For the reasons stated below, we agree with the district court 10
on all points. 11
12
II. DISCUSSION 3
13
14
Federal preemption of state law can be express or 15

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4Clarkstown discusses the three recognized forms of preemption: express
preemption and the two types of implied preemption, “field” and “conflict.”
These categories are not rigidly distinct; for example, it may be possible to
recast field preemption as a subset of conflict preemption. English v. Gen.
Elec. Co., 496 U.S. 72, 79 n.5 (1990).
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implied. See New York SMSA Ltd. P’ship v. Town of Clarkstown, 1
612 F.3d 97, 104 (2d Cir. 2010) (per curiam). 4 To establish 2
implied preemption, evidence of Congressional intent to 3
displace state authority is required. See Crosby v. Nat’l 4
Foreign Trade Council, 530 U.S. 363, 372 (2000). There is a 5
rebuttable presumption against the preemption of the states’ 6
exercise of their historic police power to regulate safety 7
matters. See New York State Rest. Ass’n v. New York City Bd. 8
of Health, 556 F.3d 114, 123 (2009) (citing Hillsborough 9
Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 718 10
(1985)). 11
The Airport argues that, once a tree becomes an 12
“obstruction” to air navigation under the FAA Regulations, the 13
local permit process becomes ipso facto inapplicable to the 14
Airport’s efforts to trim or remove that tree. However, it 15
does not claim that the permit process is entirely preempted 16
or invalidated by federal law, merely that it cannot operate 17
so as to interfere with the removal of obstructions to air 18
navigation. 19
Generally, facial challenges must demonstrate that there 20

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Page 9 of 15
is no possible set of conditions under which the challenged 1
state permit process could be constitutional. See, e.g., Cal. 2
Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 580 (1987). 3
However, this showing need not be made when a plaintiff claims 4
that “what is preempted [ ] is the permitting process itself, 5
not the length or outcome of that process in particular 6
cases.” Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 7
644 (2d Cir. 2005). 8
On their face, the IWWA, CEPA, and the local permit 9
process established pursuant thereto do not address issues of 10
air safety. Nor do they prohibit removal of the trees; they 11
merely impose a permit requirement on their removal. A proper 12
examination of the Airport’s claim therefore requires us to 13
consider whether federal law occupies the field of air safety, 14
and if it does, whether the state laws and regulations intrude 15
upon that field. 16
“The United States Government has exclusive sovereignty 17
of airspace of the United States.” 49 U.S.C. § 40103(a)(1). 18
The district court took this language, as well as the overall 19
statutory and regulatory scheme initiated by the Aviation Act, 20
as evidence of “a clear congressional intent to occupy the 21
entire field of aviation safety to the exclusion of state 22

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5 ATA, 520 F.3d at 225, collects the relevant circuit cases through
2008. Since then, at least one additional circuit has held that Congress
intended to occupy the field of air safety. See US Airways, Inc. v.
O’Donnell, 627 F.3d 1318, 1326 (10th Cir. 2010); see also Montalvo v. Spirit
Airlines, 508 F.3d 464, 468 (9th Cir. 2007); Greene v. B.F. Goodrich Avionics
Sys., Inc., 409 F.3d 784, 795 (6th Cir. 2005); Abdullah v. Am. Airlines, Inc.,
181 F.3d 363, 367-68 (3d Cir. 1999); French v. Pan Am Express, Inc., 869 F.2d
1, 5 (1st Cir. 1989).
Page 10 of 15
law.” Goodspeed, 681 F. Supp. 2d at 201. 1
In Air Transport Ass’n of America, Inc. v. Cuomo (ATA), 2
520 F.3d 218, 225 (2d Cir. 2008), this Court observed that 3
several of our sister circuits, and several district courts 4
within our own circuit, have concluded that Congress intended 5
to occupy the entire field of air safety and thereby preempt 6
state regulation of that field. ATA examined evidence of 7
Congressional “intent to centralize air safety authority and 8
the comprehensiveness of [ ] regulations pursuant to that 9
authority,” under both the Aviation Act and the ADA. Id. 10
However, as the district court was careful to observe, ATA 11
stopped short of formally holding that Congress intended to 12
occupy the field of air safety. See Goodspeed, 681 F. Supp. 13
2d at 199. Today we join our sister circuits. 5
14
But concluding that Congress intended to occupy the field 15
of air safety does not end our task. As the district court 16
recognized, the inquiry is twofold; we must determine not only 17
Congressional intent to preempt, but also the scope of that 18

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6The district court in Tweed rejected the claim that these regulatory
actions were expressly preempted by the language of the Airline Deregulation
Act discussed below. 582 F. Supp. 2d at 268.
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preemption. “The key question is thus at what point the state 1
regulation sufficiently interferes with federal regulation 2
that it should be deemed pre-empted[.]” Gade v. Nat’l Solid 3
Wastes Mgmt. Ass’n, 505 U.S. 88, 107 (1992). We agree with 4
the district court that although Congress intended to occupy 5
the entire field of air safety, the state laws at issue here 6
do not interfere with federal laws and regulations 7
sufficiently to fall within the scope of the preempted field. 8
Goodspeed, 681 F. Supp. 2d at 201-02. 9
The district court correctly distinguished a recent case, 10
also from the District of Connecticut, which held that the 11
Aviation Act impliedly preempts certain town regulatory 12
actions. 6 Tweed-New Haven Airport Auth. v. Town of East 13
Haven, Conn. (Tweed), 582 F. Supp. 2d 261, 267 (D. Conn. 14
2008). There, municipal defendants sought to prevent a 15
commercial airport from “obstruct[ing] construction of a 16
federally-mandated, federally-funded, and state- and 17
federally-approved” runway project intended to enhance 18
aviation safety. Id. at 263. 19
The local regulatory action at issue in Tweed constitutes 20

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7As the response was not the product of formal rulemaking, the district
court afforded it limited Skidmore/Mead deference. See Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944); see also United States v. Mead Corp., 533 U.S.
218, 234-35 (2001). Further, the district court confined its consideration of
the response to its discussion of the Airport’s field preemption claim, as the
court’s ruling on the express preemption claim depended on certain factual
findings, Goodspeed, 681 F. Supp. 2d at 192-98, unavailable to the federal
Government. Id. at 213 n.11. In any event, the district court explicitly
noted that it would have reached the same result even had it afforded the
response no deference at all. Id. at 213, 214.
Page 12 of 15
a much more direct intrusion of local authority on the 1
preempted field of air safety than do the regulatory actions 2
challenged here. Unlike Tweed-New Haven Airport, Goodspeed 3
Airport is not licensed by the FAA; it is not federally 4
funded, and no federal agency has approved or mandated the 5
removal of the trees from its property. Indeed, in its 6
response to a formal inquiry from the district court in this 7
case, the federal government disclaimed any authority to order 8
the trees’ removal. 7 Therefore, while in Tweed the 9
construction project was approved, indeed required, by the 10
federal regulatory authority, in this case there is no federal 11
interest in the Airport’s proposed actions. 12
Moreover, IWWA and CEPA are environmental laws that do 13
not refer to aviation or airports. Neither statute prohibits 14
the trimming or removal of any tree located in a protected 15
area. Instead, the Wetlands Act requires only that Appellant 16
obtain a permit before removing the trees in question. See 17
Conn. Gen. Stat. § 22a-42a. Thus, Appellant’s contention that 18

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IWWA and CEPA have the impermissible “effect” of “prohibiting 1
the removal of the obstructions” under the Aviation Act, 2
Appellant’s Brief at 20, is unsupported. “[P]art of the pre- 3
empted field is defined by reference to the purpose of the 4
state law in question . . . another part of the field is 5
defined by the state law’s actual effect[.]” English v. Gen. 6
Elec. Co., 496 U.S. 72, 84 (1990). The state laws at issue 7
here do not enter the scope of the preempted field in either 8
their purpose or their effect. 9
In occupying the field of air safety, Congress did not 10
intend to preempt the operation of state statutes and 11
regulations like the ones at issue here, especially when 12
applied to small airports over which the FAA has limited 13
direct oversight. Appellant’s contention that the IWWC’s 14
permit application process is impliedly preempted by federal 15
law is without merit. 16
Appellant also argues that both IWWA and CEPA are 17
expressly preempted by language in the Aviation Act, as 18
modified by the ADA, codified at 49 U.S.C. § 41713(b)(1): 19
Except as provided in this subsection, a State, 20
political subdivision of a State, or political 21
authority of at least 2 States may not enact or 22
enforce a law, rule, regulation, or other provision 23
having the force and effect of law related to a 24
price, route, or service of an air carrier that may 25

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provide air transportation under this subpart. 1
In ATA, this Court found the New York Passenger Bill of 2
Rights expressly preempted by § 41713(b)(1): “We hold that 3
requiring airlines to provide food, water, electricity, and 4
restrooms to passengers during lengthy ground delays does 5
relate to the service of an air carrier and therefore falls 6
within the express terms of the ADA’s preemption provision.” 7
520 F.3d at 223. Today, by contrast, we hold that the ADA 8
does not preempt applicable state and local environmental and 9
land use statues and regulations that impose permit 10
requirements whose impact on air carriers, if any, is remote. 11
See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 390 12
(1992) (cautioning that, while even indirect impact on air 13
carriers may be preempted, state action with “tenuous, remote, 14
or peripheral” effects on air carriers is not preempted) 15
(quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n.21 16
(1983)). 17
The state and local statutes, regulations and actions at 18
issue here are neither field-preempted by the language of the 19
Aviation Act, nor expressly preempted by the ADA. 20
Accordingly, Appellant is obliged to observe the appropriate 21
state procedures. 22
23

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III. CONCLUSION 1
2
Although we hold that Congress has indicated its intent 3
to occupy the entire field of aviation safety, the generally 4
applicable state laws and regulations imposing permit 5
requirements on land use challenged here do not, on the facts 6
before us, invade that preempted field. Further, the impact 7
on air carriers of the laws and regulations at issue here, if 8
any, is too remote to be expressly preempted under the terms 9
of the Airline Deregulation Act. Accordingly, the district 10
court’s judgment of January 13, 2010 is hereby A FFIRMED. 11

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