Legal Issues Concerning the Safety and Security of General Aviation Airports (2025)
Chapter: I. INTRODUCTION
LEGAL ISSUES CONCERNING THE SAFETY AND SECURITY OF GENERAL AVIATION AIRPORTS
C. Edward Young, Kali Hague, Kent Jackson, Jetlaw, LLC, Washington, DC.
I. INTRODUCTION
The regulation of aviation and the infrastructure necessary to support aircraft was subject to fits and starts. Pioneering aviation leaders believed that federal action was necessary to improve and maintain safety standards.1 The Air Commerce Act of 1926 granted the federal government exclusive, peremptory authority to regulate aircraft and pilots, but specifically excluded the regulation of airports. Eventually, most aspects of commercial service airport safety and security were uniformly regulated through federal regulation.2 However, general aviation airport safety and security is regulated through a patchwork of state regulations, some that directly reference federal guidelines, independently recreate the federal rules, establish rules independent of federal regulations, or establish no regulations or rule whatsoever.
A simple, comprehensive definition of safety includes practices intended to prevent aircraft incidents and accidents.3 A safety regulation, in this context, governs the operation of the airport. Because safety regulations are developed with the intention of making the airport and the airport environment conducive to aircraft safety, safety regulations can include specific airport design standards, restrictions on certain activities, requirements for specific equipment, and land use controls that extend beyond the boundary of the airport. Security regulations, which often go hand-in-hand with safety regulations, govern the methods or techniques used to protect airport assets, aircraft, passengers, airport personnel, and airport property from malicious harm, crime, terrorism, and other threats.
The foundational question in determining the applicability of airport safety and security regulations is whether an airport is an airport. While the answer may seem obvious, Advanced Air Mobility (AAM) facilities may challenge existing concepts of airport safety and security. The sand dunes at Kill Devil Hills in Kitty Hawk, North Carolina, a place that Orville Wright would describe as “like the Sahara, or what I imagine the Sahara to be,”4 illustrate this point. Kill Devil Hills is a bare-bones representation of the modern concept of an airport. However, Kill Devil Hills could meet the current state or federal definition of an airport. 49 U.S.C. § 47102 defines an airport as:
an area of land or water used or intended to be used for the landing and taking off of aircraft; an appurtenant area used or intended to be used for airport buildings or other airport facilities or rights of way; and airport buildings and facilities located in any of those areas; and includes a heliport.
North Carolina General Statutes Chapter 63 defines an airport as:
any area of land or water, except a restricted landing area, which is designed for the landing and take off of aircraft, whether or not facilities are provided for the shelter, servicing, or repair of aircraft, or for receiving or discharging passengers or cargo, and all appurtenant areas used or suitable for airport buildings or other airport facilities, and all appurtenant rights-of-way, whether heretofore or hereafter established.
The differences in definitions are subtle but important. The state definition is more expansive. It includes landing areas, whether or not service facilities are available. It also includes all appurtenant rights-of-way. The state definition of an airport often drives additional regulatory aspects, including planning and zoning statutes, which frequently use a distinct definition of airport to drive land use decisions.
Once an airport has been established as an airport per the federal definition, the federal aviation system uses a combination of contracts, advisory circulars, and regulation to enforce safety guidelines at the airport to receive federal funding through grants. The federal aviation system is driven by a contract-based model relying on sponsor airports to accept grant assurances as a condition of receiving grant funds. Grant assurances “[r]equire the recipients to maintain and operate their facilities safely and efficiently and in accordance with specified conditions.”5 To meet facility safety goals, the FAA supplements grant assurances with Advisory Circulars that govern most safety aspects. A general aviation facility is not required to follow the Advisory Circulars; however, a failure to follow the Advisory Circular limits the financial participation of the FAA. Finally, Transportation Safety Administration (TSA) safety regulations require airports to meet TSA requirements to receive commercial or regularly scheduled passenger service.
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1 NICK KOMONS, BONFIRES TO BEACONS: FEDERAL CIVIL AVIATION POLICY UNDER THE AIR COMMERCE ACT, 1926-1938, United States Department of Transportation, Federal Aviation Administration, Washington, DC (1978).
2 Safety issues related to enforcement of land use at commercial service airports rely on state and local enactments. See ACRP Report 27: Enhancing Airport Land Use Compatibility, Volume 1: Land Use Fundamentals and Implementation Resources (2010).
3 “Safety and security projects include development that is required by Federal regulation, airport certification procedures, or design standards. These projects are intended primarily for the protection of human life.” FAA, National Plan of Integrated Airports System (NPIAS) 2023-2027.
4 NAT’L AIR & SPACE MUSEUM, THE WRIGHT BROTHERS AT KITTY HAWK (June 23, 2022), https://airandspace.si.edu/stories/editorial/wright-brothers-kitty-hawk.
5 See Fed. Aviation Admin., Airport Improvement Program Grant Assurances, 87 Fed. Reg. 25691 (May 2, 2022), https://www.faa.gov/airports/aip/grant_assurances.
Most states also license airports. State airport licensure requirements are based on minimum safety standards. The penalty for failure to meet the minimum safety regulatory standards is generally revocation. Additionally, several state statutes assert civil and criminal penalties for regulatory failures. States can also incentivize regulatory compliance with a system similar to the FAA’s grant assurances.
This Legal Research Digest (LRD) explores legal issues related to safety and security at general aviation airports, with a focus on state regulatory requirements for general aviation airports. The impact of state regulatory requirements is often best explained when compared or contrasted to federal requirements, so this LRD briefly addresses certain federal airport regulatory requirements to help the reader understand the uniqueness or importance of certain state regulatory frameworks or obligations.
A Complex History of Airport Safety Regulation
In 1919, Orville Wright suggested creating a series of landing fields to permit cross-country flying. He suggested basic safety criteria for the size of an airport, the preparation of the fields, and their approximate separation based on the engineering standards of the day.6 His suggestions helped lay the foundation for the National Plan of Integrated Airport Systems (NPIAS), the federal program that identifies nearly 3,300 public-use airports and the roles those airports serve in the national system.
The invention of airplanes catalyzed the construction of airports, and subsequently created an aviation industry to provide order. In the early 20th century, the authority to own, regulate, and create airports was not a settled matter. In the late 1910s and early 1920s, a U.S. Constitutional issue arose about the control and regulation of airports. The American Bar Association (ABA) formed a Special Committee on the Law of Aviation.7 The Law of Aviation Special Committee researched Constitutional provisions that provide federal regulatory authority for aviation or in the alternative the feasibility of passing a Constitutional amendment to address emerging aviation issues. Simultaneously, the ABA Conference of Commissioners on Uniform State Laws developed the Uniform Aeronautical Regulatory Act.8
Two opposing central concerns emerged regarding federal regulation of aviation: (1) the adoption of a federal standard through the creation of a single federal system would result in the destruction of states’ rights; and (2) uniform state law adoption would not guarantee a uniform interpretation of the law among states.9 Ultimately, both arguments prevailed in different aspects of the aviation system. Today, the result is a patchwork of rules and regulations that cause confusion at the federal and state level.
The 1926 Air Commerce Act Establishes Federal Authority
The 1926 Air Commerce Act established which aspects of aviation the federal government would and would not regulate. It granted federal regulatory authority for aircraft, pilots, and air commerce organizations. The Act also provided that the Department of Commerce’s Aeronautics Branch could advise states and municipalities on the practical and technical aspects of airports, but it was not empowered to regulate airports.
Although it was understood that standardization created safety and reliability, the Air Commerce Act did not create standards for airports. Instead, the Department of Commerce created a voluntary rating system. The system aimed to provide objective guidance to municipalities and private companies that wanted to construct or improve facilities. The Department’s guidelines intended to create a uniform system of facility evaluation to promote safety. Once a rating was established, the airport manager was bound by the honor system to update the score. The Department of Commerce did not inspect facilities or verify compliance with the standard. Details regarding AAA, AA, and A standards were published in various aviation publications and were a foundational component of airport design.10
The Air Commerce Act of 1926 stated:
The Secretary of Commerce is authorized to designate and establish civil airways and, within the limits of available appropriations hereafter made by Congress, (1) to establish, operate, and maintain along such airways all necessary air navigation facilities except airports….
The Air Commerce Act specifically rejected allowing the federal government to fund airports based on the cost of the investment and the “docking theory.” The docking theory was a notion championed by Senator Hiram Bingham that local governments, not the federal government, had built the nation’s great shipping ports and the ports were sources of pride to the cities that built them. Senator Bingham opined that, “[i]n the future, towns must build municipal airports, states must provide safe air routes and the Nation must furnish aids to air navigation and improve navigable airways and air harbors.”11 The Secretary of Commerce, Herbert Hoover,12 agreed and adopted this principle. Hoover believed the federal government should not fund airports as this was the “duty of either the citizens or the municipalities.”
The exclusion of airports from the regulatory and funding purview of the federal government left states and municipalities in the position of justifying public expenditure and authorizing the operation of the airport.
States Fill the Gap in Airport Safety
The federal government’s decision not to preempt airport regulation allowed the states to take the lead. From 1919 to
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6 Orville Wright, Aviation and Engineering Magazine (Jan. 1919) https://archive.aviationweek.com/issue/19190101.
7 Deborah Gwen Douglas, The Invention of Airports: A Political, Economic and Technological History of Airports in The United States, 1919-1939, 32 (1996) (U. Penn.) [hereinafter Douglas].
8 Id.
9 Id.
10 ROBERT HARDAWAY, AIRPORT REGULATION, LAW AND PUBLIC POLICY 21 (1991).
11 Id. at 48.
12 Herbert Hoover served as the Secretary of Commerce (1921-1929) during the Harding and Coolidge Administrations and became the 31st President of the United States.
1921, Texas, Kansas, Indiana, Oregon, Minnesota, Wisconsin, Pennsylvania, Kentucky, Florida, Washington, and Ohio enacted laws that addressed the key legal questions surrounding airport placement. The Kansas law, for instance, authorized cities to purchase, lease, and maintain municipal airports.13 Indiana’s 1921 law permitted cities and counties to acquire property through purchase or condemnation and to fund airport operation through bonds or general funds. Indiana’s law also permitted cities and counties to adopt zoning regulations restricting the use of adjacent properties.14
In 1930, the Oklahoma Supreme Court held in Ruth v. City of Oklahoma that Oklahoma’s 1929 airport authorization enactment allowed a city to acquire real estate for “public utility and public park purposes, and for . . . aviation airports.”15 The Oklahoma Supreme Court cited two 1928 cases in Kansas and Oregon to support its conclusion. Ruth v. City of Oklahoma’s seminal holding meant that an airport was a public utility and therefore a public purpose. Cities in Oklahoma were now entitled to spend funds on their airports. The case paved the way for critical airport development and maintenance across the state.
In the early 1930s, the federal government encouraged cities, counties, and municipalities to enact zoning regulations to protect airports.16 The concept of airport zoning coupled with the docking theory. The communities enhanced and protected their investments through zoning codes and by eliminating any hazard that would jeopardize the full use of the airport.
At the time, the Department of Commerce’s Aeronautics Branch was concerned not only with physical hazards to landing and taking off but also with the vast number of nuisance and trespassing lawsuits that were brought against airports.17 The Aeronautic Branch maintained that the airport was not a nuisance, but did note the concern where property owners may endanger aircraft and attempt to stop airport development. When a state legislature enacted authorization or zoning regulations, it buttressed the idea that airports, just like shipping ports, serve a public purpose, and using an airport was not trespassing or a nuisance.18
The Origin of Federal Contract Compliance in Airport Grants
Several Depression-era programs funded airport construction, despite the prohibition of funding in the Air Commerce Act of 1926. The Federal Emergency Relief Act (FERA) was a strict grants-in-aid program that transferred federal monies to state and local agencies. In 1934, the Civil Works Administration (CWA) launched an airport development program that constructed 688 projects and spent $11.5 million on airport construction, or approximately $266 million in 2024 value. The general motivation for the program was the creation of an “Interstate Federal Traffic Airways” or a chain of “landing fields along the principal arteries traversing each state.”19 Although funded by federal appropriation, CWA airport projects were decentralized and approved by the state CWA administrator. Some administrative functions were also retained by the federal government. This funding mechanism is similar to the current State Block Grant System. The local sponsor was required to own the property and make a commitment to operate the facility for five years. The CWA was a short-term program replaced by the Works Project Administration (WPA).
The WPA was administered entirely by the federal government. It emphasized a direct federal-local partnership rather than transferring money to the states. All project expenditures were approved in Washington, DC, and all project funds remained under federal control. Washington officials approved a project list, and the state WPA administrator selected projects from the list. A local sponsor retained operational control over its project.20 The federal-local bond was an important point in the program. Airway development was not a primary concern for the WPA. Navigational equipment and the development of federal airways, authorized functions of the Department of Commerce Aeronautics Branch under the Airways Act of 1926, more closely aligned with the Public Works Administration.21 The WPA created a strong bond with the reorganized Bureau of Air Commerce’s Airport Section, which was engaged to review proposals. If a proposal met the Bureau’s standards, it was sent to the WPA Division of Airways and Airports. The Division of Airways and Airports established its own set of standards. The approval of a local sponsor’s project required a contractual obligation to meet the standards established in the review process. At the time, particular emphasis was placed on the local sponsor contributing a portion of the cost of the improvement.22
Uniform Law Movement
Great strides in funding airport programs with federal dollars were made from 1926 to 1935. However, airport standards remained an advisory function of the federal government until the passage of the Civil Aeronautics Act of 1938.
In 1935, the National Conference of Commissioners on Uniform State Laws (NCUSL) published the Uniform Airports Act and Uniform Aeronautical Regulatory Act.23 The NCUSL was established in 1892 to promote “uniformity in states laws on all subject where uniformity is deemed desirable and practicable.”24 However, a uniform act does not ensure uniformity. Uniform laws proposed by the NCUSL are rarely adopted by all states. In
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13 KAN. STAT. ANN. § 3-101 (1920).
14 Douglas, supra note 7, at 45.
15 Ruth v. Oklahoma City, 1930 OK 150 (1930).
16 Id. at 73.
17 Id. at 110.
18 See discussion in ACRP Legal Research Digest 15: Compilation of State Airport Authorizing Legislation (2012) at 6.
19 Douglas, supra note 7, at 136.
20 Id. at 79.
21 Id. at 361.
22 Airport System Development (Washington, D.C.; U.S. Congress, Office of Technology Assessment, OTA-STI-231, Aug. 1984).
23 See Jodi L. Howick, ACRP Legal Research Digest 15: Compilation of State Airport Authorizing Legislation (2012); App. C. The Uniform Airports Act of 1935 is reprinted in its entirety.
24 James Dodge, Report of the Illinois Delegation to the National Conference of Commissioners on Uniform State Law, Legislative Research Bureau, Springfield, Ill., 2016.
fact, the Uniform Airport Act was only adopted in its entirety by two states.25 The existence of the Uniform Airport Act did provide a foundational point for states to use in the creation of airport safety and security statutes.
When a state adopts a provision or an entire uniform act, all interpretations of the law fall within the purview of that specific state. Uniform or identical provisions adopted by multiple states do not guarantee a uniform interpretation of the law. The highest court in each state is permitted to interpret a uniform law in accordance with other laws in the state and with deference toward that state’s constitution. The decision of a court in another state adopting the same or similar language will be given weight.
ACRP Legal Research Digest 15: Compilation of State Airport Authorization Legalization (2012) Appendix A provides a table that documents the Uniform Law Influence on State Authorizing Legislation in two categories: Aeronautics and Zoning. Based on the table, only three states’ authorizing legislation was not influenced by the Uniform Law. This proves the Uniform Airport Act influenced state safety standards, and it is still applicable. The variation in state laws regulating airports, despite the Uniform Law influence, is reflected in the tables and charts cataloging state enactments in chapters IV and V of this digest.26
The Civil Aeronautics Act of 1938 and Extension of Federal Authority by Contract
The Civil Aeronautics Act of 1938 changed how airports were regulated. The Act dictated federal oversight and federal approval of an entire airport facility if federal funds were spent on any portion of the facility.27 Federal oversight was enforced through contract. Local governments were expected to provide the airport site and the structures that were not related to navigation (e.g., hangars, passenger terminals, etc.).28 States were expected to develop a coherent airport development plan, to pass laws (e.g., airport enabling acts, zoning regulations, etc.) that enhanced the airports’ operational capacities.29 States were also expected to assist the Civil Aeronautic Authority in determining how to best distribute federal funds.30
The system of contractual obligation continues in the FAA’s current grant assurance system. A thorough discussion of each grant assurance is contained in ACRP Research Report 184: Executive Summary for the Guidebook on Understanding FAA Grant Assurance Obligations.31
Federal Contract Authority Is Constitutional
Congressional use of contract authority to encourage the adoption of general welfare enactments by states was upheld in South Dakota v. Dole.32 Dole involved withholding a percentage of federal highway funds in jurisdictions with a drinking age below 21. The decision required Congress to place unambiguous conditions on appropriations so that states fully understand the implications of the conditions. The conditions must also be related to the federal interest in the program that is being funded. Additionally, Congress cannot compel a state to do something that would be illegal under the state’s constitution or be so coercive that “pressure turns into compulsion.”33 The FAA Grant Assurance program falls plainly within the parameters of Dole. The airport, or the state in a block grant or channeling state, accepts funds in exchange for meeting specific federally imposed airport standards.
FAA Certification of Airports
The Airport and Airway Development Act of 1970 created an airport certification program. The FAA memorialized safety and emergency response regulations required by Congress in 14 C.F.R. § 139, Certification of Airports. The 1970 Act amended Title VI of the Federal Aviation Act of 1958, a section specifically related to safety regulation, to require the FAA to “issue airport operating certificates to airports serving air carriers.”34 The Act required the certificate to “prescribe such terms, conditions, and limitations as are reasonably necessary to assure safety in air transportation, including but not limited to, terms, conditions, and limitations relating to—(1) the installation, operation, and maintenance of adequate air navigation facilities; and (2) the operation and maintenance of adequate safety equipment, including firefighting and rescue equipment capable of rapid access to any portion of the airport used for the landing, takeoff, or surface maneuvering of aircraft.”35
General aviation airports are not required to meet the standards of Part 139. In Hartman v. United States,36 for instance, the plaintiffs in a personal injury suit alleged that the failure of a general aviation airport to conduct a wildlife assessment under AC 150/5200-33B and 14 C.F.R. § 139.337 contributed to an accident. The court decided the matter on a failure to demonstrate causation. This case demonstrates misunderstanding of the application of Part 139. Part 139 is never mandatory for a general aviation airport.37
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25 Id. at 7.
26 See discussion infra chapters IV and V.
27 Douglas, supra note 7, at 189.
28 Id. at 190.
29 Id.
30 Id.
31 Barry Molar, ACRP Research Report 184: Executive Summary for the Guidebook on Understanding FAA Grant Obligations (2018). The research is presented in several publications, including ACRP Web-Only Document 44, Vol. 1: Understanding FAA Grant Assurance Obligations—Guidebook; ACRP Web-Only Document 44, Vol. 2: Understanding FAA Grant Assurance Obligations—Technical Appendices; ACRP Web-Only Document 44, Vol. 3: Understanding FAA Grant Assurance Obligations—Research Report; and ACRP Web-Only Document 44, Vol. 4: Understanding FAA Grant Assurance Obligations—Summary of AIP Grant Assurance Requirements.
32 South Dakota v. Dole, 483 U.S. 203, 205 (1987).
33 Id. at 211.
34 The Airport and Airway Development Act of 1970 (emphasis added).
35 Id.
36 Hartman v. United States, 923 F. Supp. 2d 1287 (W. Dist. Okla. 2013).
37 A general aviation airport can maintain Part 139 certification voluntarily or in anticipation of a return of commercial service.
