Judge set to issue ruling in helicopter case Friday

By Lisa Majors-Duff

After stipulating to the facts - that the county adopted an ordinance regulating sight-seeing helicopter businesses Nov. 1 and that pilot Jim Garst of Cherokee Helicopters flew with a paying customer three days later - Bridgers said the ordinance violates both the supremacy and equal protection clauses of the U.S. Constitution and therefore cannot be used as an instrument to charge his client with a crime.

Under the county's ordinance, which resulted after Qualla residents complained on numerous occasions to the Jackson County Board of Commissioners about the noise and frequency associated with helicopter flights, such businesses are now permissible only in Cullowhee at the county airport.

But before beginning operations there, a helicopter operator must file an "Operations Plan Application" that addresses nine separate criteria, including the general health, safety and welfare of the county's citizens, the peace and dignity of the county, the county's general development plan, how the business will impact public institutions, proposed flight frequencies, times, altitudes and routes, and air and water pollution considerations.

On behalf of his client, Bridgers took issue specifically with the county's attempt to "preempt control by the federal government" with regard to regulations on helicopter flights already in place and enforced by the Federal Aviation Administration. Attempting to regulate a helicopter operation's flight patterns is a violation of the U.S. Constitution's supremacy clause, which has been interpreted to mean that state and local governments may not interfere with the federal government or its function.

"Congress and the U.S. Supreme Court have both said that we must have a uniform law with respect to flight," Bridgers said. The county's attempt to regulate how often, how high and in what direction a sight-seeing helicopter flies is "a blatant violation of federal aeronautics regulations and not allowed by federal or state law," he said.

The county's ordinance also violates the Constitution's equal protection clause by labeling a sight-seeing helicopter operation a nuisance unless it is located at the Jackson County Airport, Bridgers said. No other types of helicopter activities are identified as such, and, in fact, the ordinance points out that helicopter flights are permissible when they deal with medical situations, law enforcement operations and emergency management.

The only thing the county is attempting to regulate with its ordinance is the use of a helicopter for sight-seeing purposes, he said.

By not operating at the Jackson County Airport, "the ordinance categorizes this lawful enterprise as a nuisance of the law," Bridgers said. "But the courts have said that an airport is not a nuisance... and there is no basis under the law for the county to define this as a nuisance."

To be defined as a public nuisance, a business must be a nuisance at all times, regardless of its location, he said.

Bridgers went on to say that the county's ordinance can be viewed as a "NIMBY," or "Not In My Backyard," example of legislation. When the people don't like something, they complain to their elected officials, who, in this case, went beyond their scope and range of powers by attempting to regulate a business already controlled by the federal government.

Should someone from the private sector wish to prevent Cherokee Helicopters from operating sight-seeing tours, they should do so with civil, not criminal, action, said Bridgers.

Defending the county's ordinance and the charges against Garst, Assistant District Attorney Monica Leslie said state statutes establishing general police powers give the county the right to regulate such businesses when its citizens' health and happiness are at stake. She pointed out that one of the stated purposed of the ordinance is to address "great public disturbance and anxiety" caused by the helicopter, which is "injurious to the health, safety, welfare and happiness of the citizens of Jackson County."

"The counties do have the power to reasonably regulate flights over their lands if they are affecting the health and happiness of its citizens," she said. "And that's the reason the county did this, because of the frequency of the flights, which do interfere with the use of the citizens' land."

Responding to the defense's claim of an equal protection violation, Leslie said that it may appear the county has singled out this business simply because Cherokee Helicopters is the only business of its kind currently operating in Jackson County. Should a similar business wish to operate here, it would also fall under the county's regulations, she said.

"This is a reasonable regulation - to require a plan and to fly from the Jackson County Airport," Leslie said.

Possibly punching a hole in the state's theory, Judge Steve Bryant posed a hypothetical situation in which a private citizen flies a helicopter under the exact conditions as Cherokee Helicopter, but instead of taking money to fly every 30 minutes, he flies his wife for free on a similar schedule. Why, Judge Bryant asked, would the private citizen's action be considered a legal endeavor and not Cherokee Helicopter's operation, he asked.

"There needs to be a rational basis why one is different from the other," he said.

"The reality of the situation is that no one is doing that here," said Leslie, referring to the judge's example. She then pointed out that a government's regulation of a sight-seeing helicopter operation is akin to state and local laws controlling taxi cab buinesses.

Bridgers disagreed with this analogy, saying that while taxi cabs may be regulated by local laws, they are not regulated by federal laws as helicopters are.

Speaking to the lawyers and about a dozen audience members who expressed interest in the case, Judge Bryant said he plans to issue his ruling at 9 a.m. Friday, Dec. 7.

Back to Archive: 12/06/01.