00-2545 Vorhees v. Naper Aero Club Inc

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“We agree with the defendants that the Illinois law claims Vorhees is trying to assert may very well be preempted by the Federal Aviation Act (though we make no ruling on that question at this time). But the fact that a federal statute creates a defense to a state law claim does not necessarily mean that ‘Congress has, by statute, taken the subject away from state tribunals and given it to federal courts.’ Ceres, 53 F.3d at 186. The question is whether, in enacting the Federal Aviation Act, Congress clearly intended completely to replace state law with federal law and create a federal forum, or, more likely, if it only intended to provide a federal defense to the application of state law. See Graf v. Elgin, Joliet & Eastern Ry. Co., 790 F.2d 1341, 1344 (7th Cir. 1986). In this case, we conclude that it is the latter.”

“There is no such broad language in the Federal Aviation Act specifically prohibiting state and local governments from regulating airflight in any way whatsoever. True, the United States does have ‘complete and exclusive national sovereignty in the air space’; but this does not completely extinguish all rights based on state law. See United States v. Causby, 328 U.S. 256 (1946) (recognizing a Fifth Amendment takings claim in connection with overflights of U.S. military aircraft that affected plaintiff’s property). This case, it is worth recalling, is about an alleged trespass into the airspace over Vorhees’s property. If the federal presence were as total as the defendants claim, then Vorhees would have no state trespass claim even if Naper Aero claimed a right to enter Vorhees’s property and build guidelights there to assist landing aircraft. We have not gone that far in the past; to the contrary, we have held that some state law claims relating to airflight may still have merit, notwithstanding the broad scope of the Federal Aviation Act.”

Vacated and remanded.

Appeal from the United States District Court for the Northern District of Illinois, Alesia, J., Diane P. Wood, J.