Ruling may impact tours

New York case may alter Juneau's ability to regulate flightseeing trips

Posted: Thursday, July 05, 2001

A recent court decision that gives New York City the power to prohibit flightseeing opens doors to limit flight noise in Juneau, according to a group of local attorneys. But local officials say other factors make the ruling less clear.

In March 1999, SeaAir NY began to offer seaplane tours from a private base on city-owned waterfront property. The tours flew passengers around the New York City metropolitan area for about 30 minutes and landed at the base. When New York City banned commercial air tours to minimize noise, SeaAir filed suit, alleging the city pre-empted federal aviation statutes.

Upholding a lower court decision, the U.S. 2nd Circuit Court of Appeals ruled for New York City in May, deciding its restrictions on flightseeing were not unreasonable or arbitrary.

In a letter to the Juneau Assembly, seven Juneau attorneys said the New York case resets the legal stage, allowing a municipality to control and regulate flightseeing without colliding with federal jurisdiction.

Attorney Ray Preston of the Peace and Quiet Coalition said the case clears the path for the city of Juneau to regulate flightseeing and control noise.

"A credible legal argument cannot be raised that the city doesn't have the power, the jurisdiction and the authority to regulate flightseeing as they see fit. Whether they use the power remains to be seen," he said.

City Attorney John Corso said the case is relevant but not determinative for Juneau. The Juneau Airport receives federal grants that require nondiscriminatory practices, he said. The case may provide a wider scope for municipal regulation of flights from places where grant funds are not involved, such as Gastineau Channel, he said.

"In general principal, the New York case is good news for communities that wish to regulate flightseeing. It's not a panacea, but it's helpful," he said. "The obvious issue is whether it applies to the airport."

Aviation attorney Rick Durden, who was hired this spring to prepare a legal analysis of the city's options to regulate flightseeing, said the case has limited application because most city airports and heliports receive federal funding. In other cases, a state may exercise authority, he said.

But Juneau attorney Deborah Vogt, who signed the letter as a concerned citizen, said the SeaAir case provides a distinction between transportation flights and flightseeing that may be of assistance in Juneau.

Assembly member Jim Powell, who heads the Assembly's Planning and Policy Committee, said the panel plans to start work on an ordinance that will allow alternative heliports on city property. Regulating flightseeing in the harbor is another possibility, he said.

"Right now, we've done a very good job with the nonregulatory side. In the future, the Assembly will be looking at the regulatory approach," he said. "We're starting to work on it now. We've been examining the options in the Durden report."

Wings of Alaska President Bob Jacobsen said regulation would put people in the flightseeing industry out of work. Wings has cut back on floatplane operations at the downtown waterfront in the past decade and brought in larger planes to reduce the number of flights, he said.

"I've read the Durden report and the most important thing in the analysis suggested that the parties work together. And that's what we've been doing for a number of years, seeking compromise and finding common ground," he said.

Juneau Mayor Sally Smith, who lives on Lawson Creek, said the SeaAir case is interesting, but the city needs time to digest the ruling. Changes likely won't be in place this summer, she said.

"People want relief now, I want relief now. I live right where the floatplanes take off and it's tough. I experience it as well, but finding the right answer that's fair is tougher," she said.

Joanna Markell can be reached at joannam@juneauempire.com.



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