In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-4045

DANIEL HOAGLAND, KAREN HOAGLAND,

HOAGLAND FAMILY LIMITED PARTNERSHIP

and CLEAR LAKE MANAGEMENT

CORPORATION,

Plaintiffs-Appellants,

v.

TOWN OF CLEAR LAKE, INDIANA;

ROBERT D. TROLL, DEROLD H. COVELL,

EMMA J. BROWN, WILLIAM GEIGER, JOE

DRIVER, and THOMAS REITH, individually

and in their official capacity as current

and former members of the Clear Lake

Town Council and Plan Commission;

THOMAS WEHRENBERG, in his official

capacity as a former member of the Clear

Lake Town Council and Plan Commission;

RICHARD ALLEN LEHMAN, individually and

in his official capacity as Town of Clear Lake

Marshal and Clear Lake Zoning Inspector;

JULIE AZCHRICH, BARB DISSER, ALAN B. LARUE

and THOMAS REITH, individually and in their

official capacity as current and former

members of the Board of Zoning Appeals of

the Town of Clear Lake, Indiana,

Defendants-Appellees.
2 No. 04-4045

1 When we refer to “Hoagland,” we mean Daniel Hoagland,

clearly the moving force behind this lawsuit.

____________

Appeal from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

No. 1:03-CV-241—Roger B. Cosbey, Magistrate Judge.

____________

ARGUED JUNE 8, 2005—DECIDED JULY 18, 2005

____________

Before CUDAHY, EVANS, and WILLIAMS, Circuit Judges.

EVANS, Circuit Judge. This lawsuit, accurately described

by Magistrate Judge Roger B. Cosbey as a feud, pits Daniel

Hoagland and the other plaintiffs,1

 owners of a heliport,

against the town fathers of Clear Lake, Indiana, a very

small and apparently wealthy community ringing the

shores of an inland lake in northeastern Indiana. The town

wants to get rid of the heliport and has amended its zoning

ordinance (which originally did not mention landing strips)

to make it applicable to landing strips and to require that

the use of all preexisting unapproved landing areas be discontinued within 5 years. At some point, Hoagland made

his opposition to the town’s actions rather clearly known by

posting a homemade “No Trespass” sign warning that

“[t]his land is privately owned by an American national,

with sovereign rights of God the Creator,” and that “[v]iolations of the owners [sic] Private Christian, or property

rights . . . shall be assessed a civil penalty of one million

dollars in U.S. Dollars for each violation” as well as “up to

ten years in prison.” (Underlining omitted.) It is no wonder,

then, that the plaintiffs challenged the town’s right to
No. 04-4045 3

regulate landing strips in the present case—which is, by the

way, not the only litigation involving these parties. In this

case, the parties filed cross-motions for summary judgment

in the district court. The defendants’ motion was granted

and the plaintiffs appeal. Our review is de novo. Nese v.

Julian Nordic Constr. Co., 405 F.3d 638 (7th Cir. 2005).

Hoagland, a licensed pilot, lives in Clear Lake and commutes by helicopter to his electrical contracting business 60

miles away in Fort Wayne. To make his helicopter commute

user-friendly, he constructed two landing pads on his

property in Clear Lake. In 1999, the town sued Hoagland in

Steuben County (Indiana) Superior Court, alleging that the

helicopter takeoffs and landings were a “public nuisance.”

The case was submitted to mediation. Although Hoagland

did not know it, at that time Clear Lake had no existing

ordinance governing landing strips, but, Hoagland contends, during the negotiations Clear Lake officials often

alluded to one. Eventually a settlement was reached in

which Hoagland agreed to abide by several restrictions on

the helicopter operations and, in turn, Clear Lake agreed to

pay him a sum “to be negotiated.” Hoagland claims Clear

Lake never paid him anything and that he would not have

agreed to the settlement had he known there was no

ordinance in effect at the time.

Following the mediation, Clear Lake amended its existing

zoning ordinance to designate an “[a]ircraft landing strip,

pad, or space” as a “special use” requiring special permission of the Zoning Board of Appeals. It also provided that

any preexisting unapproved aircraft landing area must be

discontinued within 5 years or upon the transfer of the

property.

One of the issues raised in this appeal is whether the

ordinance should be invalidated because it is preempted by

the Federal Aviation Act, 49 U.S.C. § 40101 et seq.
4 No. 04-4045

The preemption doctrine is based in the Supremacy

Clause of the Constitution, which states, “This Constitution,

and the Laws of the United States which shall be made in

Pursuance thereof . . . shall be the Supreme Law of the

land.” U.S. Const., art. VI, cl. 2. The clause has been interpreted as supporting three ways in which federal law can

preempt state and local law: express preemption, conflict (or

implied) preemption, and field (or complete) preemption.

Boomer v. AT&T Corp., 309 F.3d 404, 417 (7th Cir. 2002).

Express preemption occurs when a federal statute explicitly

states that it overrides state or local law. Conflict preemption exists if it would be impossible for a party to comply

with both local and federal requirements or where local law

“stands as an obstacle to the accomplishment and execution

of the full purposes and objectives of Congress.” Freightliner

Corp. v. Myrick, 514 U.S. 280, 287 (1995) (quoting Hines v.

Davidowitz, 312 U.S. 52, 67 (1941)). Field preemption occurs

when federal law so thoroughly “occupies a legislative field”

as to make it reasonable to infer that Congress left no room

for the states to act. Cipollone v. Liggett Group, Inc., 505

U.S. 504, 516 (1992).

In the district court, according to Judge Cosbey, the

plaintiffs’ briefs were “hazy” on which preemption theory

was being propounded. On appeal, it seems relatively clear

they are relying on express preemption. They contend that

49 U.S.C. § 41713(b)(1) preempts the local ordinance. That

section provides:

Except as provided in this subsection, a State, political

subdivision of a State, or political authority of at least

2 States may not enact or enforce a law, regulation, or

other provision having the force and effect of law related to a price, route, or service of an air carrier that

may provide air transportation under this subpart.

The question, then, is whether the Clear Lake ordinance

relates to “price, route, or service of an air carrier.”
No. 04-4045 5

The plaintiffs argue that restricting Hoagland from making

landings or departures from his helipad necessarily affects

his route, and the ordinance is thus preempted. In support of

this argument they point out that the helipads have been

formally approved by federal and state authorities. In

January 1996 and December 2000, the Federal Aviation

Administration (FAA) issued Airspace Determinations which

stated that daytime visual helicopter operations can be safely

conducted at the Clear Lake Heliport. In February of 1996,

the State of Indiana Department of Transportation

Aeronautics Section issued a Certificate of Site Approval

certifying that the Clear Lake Heliport has met the administrative requirements for a private-use heliport.

There is at least superficial force to the argument that the

elimination of his helipad (the end result of the ordinance)

would affect Hoagland’s flight routes. Obviously it would.

His route would no longer end in Clear Lake. But the

question for us is whether the statute preempts so much,

and we conclude that it does not. The Clear Lake ordinance

is a land use, or zoning, ordinance, not a flight pattern

regulation. We are not convinced that Congress meant to

take the siting of air fields out of the hands of local officials.

The siting of an airfield—so long as it does not interfere

with existing traffic patterns, etc.—remains an issue for

local control.

Cases from the Supreme Court and our sister circuits as

well as FAA regulations support our conclusion. To see

what is not preempted, we will first look at the kinds of

regulations which are preempted. These include noise regulation ordinances and flight pattern controls. In City of

Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973), the

Supreme Court determined that in light of the pervasive

nature of the scheme of federal regulation of aircraft noise,

as evidenced by the Noise Control Act of 1972, the FAA and

the Environmental Protection Agency had full control over

airport noise, preempting local control. The Court of
6 No. 04-4045

Appeals for the Eleventh Circuit followed suit in Pirolo v.

City of Clearwater, 711 F.2d 1006 (11th Cir. 1983), finding

that local ordinances prohibiting night operations and

proscribing air traffic patterns were preempted. The Court

of Appeals for the Ninth Circuit found that curfews on

aircraft flights were preempted in San Diego Unified Port

Dist. v. Gianturco, 651 F.2d 1306 (9th Cir. 1981).

In Abdullah v. American Airlines, Inc., 181 F.3d 363

(3d Cir. 1999), the court found air safety regulations preempted. And a state statute requiring drug testing of pilots

was found to be preempted in French v. Pan Am Express,

Inc., 869 F.2d 1 (1st Cir. 1989).

These cases have one thing in common. They involve

issues which reach far beyond a single local jurisdiction and

which cannot sensibly be resolved by a patchwork of local

regulations. It would be unmanageable—say nothing of

terrifying—to have local control of flight routes or of flight

times. Such things require nationwide coordination. But the

issue of where a local governing body chooses to site an

airport is different. When an airport is proposed, the FAA

makes a determination of the safe and efficient use of the

airspace in regard to the airport, but in situations such as

the one before us, the agency leaves the decision not to

allow a landing strip to the discretion of the local government.

A case specifically on point is Condor Corp. v. City of

St. Paul, 912 F.2d 215, 219 (8th Cir. 1990), in which the

court found there was no preemption in the denial of permission to operate a heliport:

Here, Condor asserts the City’s action in denying its

permit conflicts with the FAA’s regulation of airspace.

We see no conflict between a city’s regulatory power

over land use, and the federal regulation of airspace,

and have found no case recognizing a conflict. See, e.g.,

Wright v. County of Winnebago, 73 Ill.App.3d 337, 29
No. 04-4045 7

Ill.Dec. 347, 352, 391 N.E.2d 772, 777 (1979) (FAA does

not preempt local zoning authority); Garden State

Farms, Inc. v. Bay, 77 N.J. 439, 390 A.2d 1177 (1978)

(same). We therefore reverse and remand to the district

court to dismiss the claim for lack of federal jurisdiction.

Similarly, in Gustafson v. City of Lake Angelus, 76 F.3d

778, 783 (6th Cir. 1996), the court considered whether a

city’s prohibition against landing seaplanes on a city lake

was preempted. Determining that a lake landing site was

analogous to an airstrip on land, the court found that the

prohibition was not preempted: .

[W]e believe the United States’ sovereign regulation of

the airspace over the United States and the regulation

of aircraft in flight is distinguishable from the regulation of the designation of plane landing sites, which

involves local control of land (or, in the present case,

water) use.

The court looked for guidance to FAA regulations, specifically 14 C.F.R. § 157.7(a).

The regulation is instructive. It provides, as to proposed

airports, that the FAA will conduct an aeronautical study

and issue a determination, considering matters such as the

effect the proposed airfield would have on existing traffic

patterns of neighboring airports and the effects on the

existing airspace structure. But a “determination does not

relieve the proponent of responsibility for compliance with

any local law, ordinance or regulation, or state or other

Federal regulation. Aeronautical studies and determinations will not consider environmental or land use compatibility impacts.” Implicit in the regulation is that the FAA

will determine whether it has any objections to a proposed

site, and if it does, the conditions set out in its objections

must be met. But, on the other hand, if the FAA has no

objection, before it can build an airfield the proponent must
8 No. 04-4045

comply with local laws. In other words, the FAA leaves land

use issues primarily to local governments.

In this case, the FAA Airspace Determination letters,

which Hoagland obtained, recognize the boundaries of FAA

determinations and make clear that certain issues remain

for local control. Both letters contain basically the same

language. We will quote from the December 2000 letter:

This determination does not mean FAA approval or

disapproval of the physical development involved in the

proposal. It is a determination with respect to the safe

and efficient use of airspace by aircraft and with respect

to the safety of persons and property on the ground.

In making this determination, the FAA has considered

matters such as the effect the proposal would have on

existing or planned traffic patterns of neighboring airports, the effects it would have on the existing airspace

structure and projected programs of the FAA, the effects it would have on the safety of persons and property on the ground, and the effects that existing or

proposed man-made objects (on file with the FAA) and

known natural objects within the affected area would

have on the heliport proposal.

The FAA cannot prevent the construction of structures

near a heliport. The heliport environs can only be protected through such means as local zoning ordinances

or acquisitions of property rights.

Then the letters state quite clearly that local control

remains:

This determination in no way preempts or waives any

ordinances, laws, or regulations of any government

body or agency.

The situation before us involves a local land use issue,

which is clearly left to local control. For that reason, the

Clear Lake ordinance is not preempted.
No. 04-4045 9

The plaintiffs also raise an issue of inverse condemnation.

They seek compensation under the Takings Clause of the

Fifth Amendment for the inverse condemnation of the land

by Ordinance 268, adopted on April 9, 2001. Although

inverse condemnation is a recognized cause of action, the

plaintiffs come up short on this issue as well because their

claim is not ripe.

Inverse takings claims under the United States

Constitution do not become ripe until adequate state remedies are exhausted. Until that time, no constitutional violation has occurred. In Williamson County Regional Planning

Commission v. Hamilton Bank, 473 U.S. 172 (1985), the

Court pointed out that the Fifth Amendment does not proscribe the taking of property, but only the taking without

just compensation. If a state provides adequate procedures

of seeking just compensation, there can be no violation until

the procedures have been used and compensation has been

denied. This principle has recently been reaffirmed. In San

Remo Hotel v. City and County of San Francisco, 125 S. Ct.

2491 (2005), the Court determined that even though the

Full Faith and Credit Clause precludes federal court

relitigation of issues which were, in fact, decided in a state

court case, nevertheless the ripeness rule of Williamson

County still applies, and plaintiffs must take their case for

compensation to the state courts. We have previously

determined that Indiana law provides an adequate state

remedy through Ind. Code § 32-24-1-16; see SGB Fin.

Servs., Inc. v. Consolidated City of Indianapolis-Marion

County, Indiana, 235 F.3d 1036 (7th Cir. 2000).

The plaintiffs say that they have, in fact, exhausted their

state remedies because of a counterclaim filed in a lawsuit

in 1999 asserting damages for inverse condemnation. That

counterclaim, however, can have nothing to do with an alleged taking in 2001. The district court properly dismissed

the inverse condemnation claim.
10 No. 04-4045

The civil rights claims—pursuant to 42 U.S.C. §§ 1983,

1985, and 1986—were also properly dismissed for a number

of reasons, not the least of which is the statute of limitations. For §§ 1983 and 1985 claims, the statute of limitations is determined by the law of the state in which the

violation took place. Wilson v. Garcia, 471 U.S. 261 (1985).

Indiana’s statute of limitations for personal injury claims is

2 years. Ind. Code § 34-11-2-4; Coopwood v. Lake County

Cmty. Dev. Dep’t, 932 F.2d 677 (7th Cir. 1991). Section 1986

contains its own one-year statute of limitations. All of the

claims here are outside these limitations periods. This

lawsuit was filed on June 23, 2003. The civil rights claims

are based on the 1999 filing of the state court suit; the

alleged misrepresentations during settlement negotiations,

which occurred on April 14, 2000; and the enactment of the

ordinances, which were last substantively amended on April

9, 2001. The attempts to cast the claims in ways which

would avoid the limitations problem are unavailing. The

continuing violation doctrine, the discovery rule, and the

doctrine of equitable estoppel all are inapplicable to the

particular facts of this case.

Finally, Judge Cosbey certainly acted wisely when he refused to exercise supplemental jurisdiction over Hoagland’s

many state law claims. Those claims, some of which raise

novel questions—for example, Hoagland alleges that the

Town of Clear Lake has never been “recognized as a legal

entity”—are best left for decision by the state courts of

Indiana.

For all of these reasons, the judgment of the district court

is AFFIRMED.
No. 04-4045 11

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-18-05