NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA

, Appellee

,

v.

TAYLOR DANIEL SILJANDER

, Appellant

.

No. 1 CA

- CR 21

- 0252

Appeal from the Superior Court in Maricopa County

No. L C2020

- 115444

- 001
The Honorable Daniel J. Kiley

, Judge

Appeal from the Hassayampa Justice Court in Maricopa County No. JC 2020

- 11544

AFFIRMED

COUNSEL

Maricopa County Attorney's Office , Phoenix By Ryan Green Counsel for Appellee

Taylor Daniel Siljander

, Glendal e Appellant FILED 3-1-2022STATE v. SILJANDER

Decision of the Court

2 MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.

M O R S E

, Judge:

¶1 Taylor Daniel Siljander appeals from the superior court ' s judgment affirming his justice court misdemeanor conviction for violati ng a county park rule. We affirm.

FACTS AND PROCEDURAL BA C KGROUND

¶2 Lake Pleasant Regional Park ( " Park " ) employees and a Maricopa County ( " County " ) sheriff ' s deputy observed Siljander fly an ultralight aircraft over portions of the Park , including a dam, " conservation

area , " and campground. Siljander was flying " just barely above [] campground campers

. "

¶3 After Siljander landed, a deputy approached and issued him a citation for violating a C ounty rule that prohibits " [o]perating any passenger aircraft of any nature . . . except in areas designated for such use by the [Maricopa County Parks and Recreation] Department or in an emergency situation. " Maricopa County Parks and Recreation Rule R

- 116 .1 ( " Rule " )

. Although Siljander admitted to flying over the Park, he moved to dismiss the citation on jurisdiction grounds, arguing federal law preempted
the C ounty ' s authority to regulate the Park ' s airspace. Siljander also

claimed the Rule is unconstitutionally vague

. The justice court denied the

motion.

¶4 At trial, the evidence established that the areas of the Park over which Siljander flew were not designated for such use, and no emergency existed that otherwise permitted flights under the Rule. T he court found Siljander guilty of the misdemeanor offense and imposed a
fine. Siljander appealed to the superior court and repeated his pre e mption and vagueness claims. The superior court affirmed the justice court , and Siljander timely appealed. This C ourt has jurisdiction under A.R.S. § 22

- 375.STATE v. SILJANDER

Decision of the Court

3 DISCUSSIO N

I. Preemption

.

¶5 Siljander contends the federal government, through the Federal Aviation Administration ( " F AA " ), has exclusive authority to regulat e navigable airspace

. He asserts the Rule is therefore preempted by

federal law and unconstitutional. See Arizona v. United States , 567 U.S. 387, 399 (2012) (noting the Supremacy Clause in Art. VI of the Constitution provides Congress the power to preempt state law). We review preemption
claims de novo

. City of Scottsdale v. State , 237 Ariz. 467, 469, ¶ 9 (App. 2015).

¶6 When determining whether federal law preempts state regulatory authority, courts assume " the historic police powers of the States are not superseded unless that was the clear and manifest purpose of Congress. " Arizon a , 567 U.S. at 400 ( cleaned up ). Congress can express its intent to preempt state law by enacting legislation that contains a preemption provision. Id. at 399. Congressional intent can also be inferred through " field " preemption, which exists when " fede ral law leaves no room for state regulation

. " Sikkelee v. Precision Airmotive Corp.

, 822 F.3d 680, 687

- 88 (3 d Cir. 2016) ( citation omitted ). Finally, state regulation is preempted
when it conflicts with federal law " such that compliance with both state and federal regulations is impossible

. " Id. at 688

.

¶7 Siljander bears the burden of establishing preemption. See
United States v. Skinna , 931 F.2d 530, 533 (9th Cir. 1990) (stating that the party asserting a preemption defense has the burden of pr oof). He attempts to
meet this burden by relying on 49 U.S.C. § 40103

, which, in addition to granting the FAA authority to regulate the use of airspace, provides : " The United States Government has exclusive sovereignty of airspace of the
United States. " 49 U.S.C. § 40103 (a)(1) , (b)

. Siljander contends that provision of the Federal Aviation Act expressly indicates Congress ' s intent

to preempt state regulation of airspace. We disagree. " [T] he Supreme Court has construed § 40103(a)(1) ' s predecessor provision as ' an assertion of exclusive national sovereignty ' that ' did not expressly exclude the sovereign powers of the states. '" Skysign Int ' l, Inc. v. City & County of

Honolulu , 276 F.3d 1109, 1116 (9th Cir. 2002) (fo otnote omitted) (quo ting Braniff Airways v. Neb. State Bd. of Equalization & Assessment, 347 U.S. 590,

595 (1954) )

.

¶8 Siljander ' s arguments purporting to establish field or conflict preemption also fail. A lthough the FAA may have exerted its authority sufficiently to occupy certain subfields of air commerce, it has not " soughtSTATE v. SILJANDER

Decision of the Court

4 to occupy the field to the full. " Id. ; see also Montalvo v. Spirit Airlines , 508 F.3d 464, 468, 472

- 74 (9 th Cir. 2007) (recognizing that the FAA has exercised its authority to re gulate pervasively aviation safety as a subfield of air

commerce such that a state

- imposed duty to warn is preempted ). Siljander
does not describe the subfield in which Rule 116.1 lays

, let alone any authority finding that subfield preempted.

¶9 Regarding conflict preemption, Siljander relies on FAA regulations that " protect aircraft in commerce. " Although Siljander asserts Rule 116.1 regulates aircraft in commerce because it prohibits passenger

carr ying aircraft, he cites no authority to support the proposition that all

passenger

- carrying aircraft are " in commerce " for purposes of determining federal preemption of state law

. 1

¶10 Finally, we note that the FAA itself has expressly contemplated the constitutional propriety of local regulations that similarly regulate ultralight aircraft. See 14 C.F.R. § 103.19 ( " No person may operate an ultralight vehicle in prohibited or restricted areas unless that person has permission from the using or controlling agency, as appropriate. " ).

¶11 Based on the foregoing, Siljander fails to overcome the presumption that Rule 116.1 is not preempted by federal law. To the contrary, Rule 116.1 properly regulates recreational flying over the Park, an activity that Siljander concedes he was engaged in.

II. Vagueness

.

¶12 Siljander ar gues Rule 116.1 is vague and therefore

unconsti t utional. We disagree.

¶13 We review the constitutionality of a statute de novo. State v.

McDermott , 208 Ariz. 332, 335, ¶ 12 (App. 2004). " When a statute is challenged as vague, we presume that it is constit utional, " and the

1 Siljander states: " The aircraft in this case doesn ' t carry passengers
and is not in commerce [,] therefore [Rule 116.1] was incorrectly applied to

it. " We cannot consider the merit s, if any, of this argument

. When a case arising in a justice court is appealed to the superior court, our jurisdiction is limited to determining the applicable statutes ' facial validity. State v.
Lindner , 227 Ariz. 69, 70, ¶ 2 (App. 2010) (citing A.R.S. § 22

- 375). For the

same reas on, we do not address Siljander ' s suggestion that the trial

evidence failed to establish he violated R ule 116.1.STATE v. SILJANDER

Decision of the Court

5 complaining party bears the burden of " demonstrating the statute ' s invalidity. " Id. at 335

- 36, ¶ 12.

¶14 " A statute is void for vagueness if it fails to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he [or she] may act accordingly. " State v. Burbey , 243 Ariz. 145, 149, ¶ 15 (2017) ( alteration in original) (internal quotation marks and citation omitted)

. " Such laws violate due process because they fail to provide fair warning of c riminal conduct and do not provide clear standards to law enforcement to avoid arbitrary or discriminatory enforcement. " Id. " Due process does not require, however, that a statute be drafted with absolute precision. " State v. McMahon , 201 Ariz. 548, 55 1 , ¶ 8 (App. 2002)

. " It requires only that the language of a statute convey a definite warning of the proscribed conduct. " Id. (quoting Fuenning v. Superior C ourt

, 139 Ariz. 590, 598 (1983) )

.

¶15 To support his ambiguity claim, Siljander points to instances in this case where law enforcement officers, the prosecutor, and the justice

court made contradict ory statements about the type of aircraft subject to
Rule 116.1 and whether the altitude of aircraft over the Park determ ines
enforcement of the Rule. Siljander also states, " Nothing about the text of R

116 indicates it applies to the air. "

¶16 First, whether the " State actors " in this case disagree about some aspects of the Rule ' s application is not dispositive in determinin g whether the Rule is unconstitutionally vague. A statute is not void for

vagueness " because it can be interpreted in more than one way. "

McDermott , 208 Ariz. at 336, ¶ 13. Second, t he Rule ' s reference to " operating any passenger aircraft " necessarily e ncompasses using an aircraft for its inherent purpose, flying. Nothing about the Rule ' s language indicates a reasonably intelligent person would fail to understand that flying an aircraft over an area of the park not designated for such activity is prohib ited , absent an emergency

. Siljander ' s vagueness claim is without merit, and he therefore fails to overcome the presumption of constitutionality.STATE v. SILJANDER

Decision of the Court

6 CONCLUSION

¶17 Siljander ' s conviction is affirmed.