OFFICES AND OFFICERS ‑- STATE ‑- AERONAUTICS COMMISSION ‑- AUTHORITY TO REQUIRE AIR HAZARDS TO BE MARKED

OFFICES AND OFFICERS ‑- STATE ‑- AERONAUTICS COMMISSION ‑- AUTHORITY TO REQUIRE AIR HAZARDS TO BE MARKED.

 (1) Federal Aviation Agency Regulation Part 626 requiring the reporting of air hazards does not supersede chapter 263, Laws of 1961, which governs the marking of structures or obstacles which have been declared to be hazards or potential hazards for the safe flight of aircraft.

 (2) Compliance with the federal regulation regarding reporting does not satisfy the requirements of the state act.

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                                                                 February 21, 1962

Honorable William Gebenini
Director, State Aeronautics Commission
7211 Perimeter Road, Boeing Field
Seattle 8, Washington

                                                                                                                Cite as:  AGO 61-62 No. 97

 Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on two questions which we paraphrase as follows:

            (1) Does Federal Aviation Agency Regulation Part 626 supersede chapter 263, Laws of 1961, of the state of Washington?

            (2) Does filing the notice demanded by Federal Aviation Agency Regulation Part 626 satisfy the reporting requirements of chapter 263, Laws of 1961?

            We answer your questions in the negative.

                                                                     ANALYSIS

            At the outset we must recognize that the court, when passing upon the constitutionality of any statute, has stated that the legislature may enact any law not expressly or inferentially prohibited by the state or federal constitution.  State ex rel. Tattersall v. Yelle, 52 Wn. (2d) 856, 329 P. (2d) 841 (1958);In re Bartz, 47 Wn. (2d) 161, 287 P. (2d) 119 (1955).  Once a statute is enacted by the legislature, we presume it to be constitutional and, thereafter, any question as to its validity or constitutionality is within the realm  [[Orig. Op. Page 2]] of the courts, and is not a proper subject for an opinion of this office.  See, also, AGO to the prosecuting attorney of Pacific County dated July 17, 1945 [[1945-46 OAG 269]], a copy of which is enclosed.

            Although you are aware of the foregoing policy of this office, you have nevertheless requested our opinion on the instant matter because, as you have advised us, your office has found enforcement of chapter 263, Laws of 1961, difficult since there is some belief on the part of the general public that compliance with Federal Aviation Agency Regulation Part 626, renders unnecessary compliance with state law.

            This will advise you that this office will render you whatever legal assistance is necessary to effectively carry out the intent and purpose of chapter 263, Laws of 1961.

            While we must decline to pass upon the constitutionality of the statute in question we feel, as your legal adviser, that we should advise you, for your general information in administering the law, that we find no conflict between the state statute and the federal regulation.

            We turn then to a consideration of the state statute and federal regulation here in question.

             By chapter 263, Laws of 1961, our legislature, in an exercise of the state's police power [seeRawson v. Dept. of Licenses, 15 Wn. (2d) 364, 130 P. (2d) 876 (1942)] declared as follows:

            "Section 1.  There is added to chapter 165, Laws of 1947 and to chapter 14.04 RCW two new sections as set forth in sections 2 and 3 of this amendatory act.

            "NEW SECTION. Sec. 2. Any structure or obstacle which obstructs the air space above ground or water level, when determined by the commission after a hearing to be a hazard or potential hazard to the safe flight of aircraft,shall be plainly marked, illuminated, painted, lighted or designated in a manner to be approved in accordance with the general rules and regulations of the commission so that the same will be clearly visible to airmen.  In determining which structures or obstacles constitute or may become a hazard to air flight, the commission shall take into  [[Orig. Op. Page 3]] account only those obstacles located at river, lake and canyon crossings and in other low altitude flight paths usually traveled by aircraft.

            "NEW SECTION. Sec. 3. The director shall have the authority to require owners, operators, lessees or others having the control or management of structures or obstacles over one hundred fifty feet above ground or water level and which are or may become a hazard to air flight to report the location of such existing or proposed structures or obstacles to the commission.  For that purpose the director may issue subpoenas and subpoenas duces tecum returnable within twenty days to the commission.  In the event a person refuses to obey the director's subpoena, the commission may certify to the superior court all facts of any such refusal.  The court shall summarily hear evidence on such refusal, and, if the evidence warrants, punish such person refusing in the same manner and to the same extent as for contempt committed before the court.

            "NEW SECTION. Sec. 4. This act shall not apply to structuresrequired to be marked by federal regulations."  (Emphasis supplied.)

            Considering the above act as a whole, it is clear that its obvious purpose is to require structures or obstacles which have been declared to be a "hazard or potential hazard" to the safe flight of aircraft to be plainlymarked "so that the same will be clearly visible to airmen."  Furthermore, § 4, chapter 263, specifically exempts from the operation of the act structuresrequired to be marked by federal regulations.

            In order not to unduly lengthen this opinion we will not set forth the various provisions of Federal Aviation Agency Regulation Part 626, adopted pursuant to the authority of Public Law 85-726, 49 U.S.C. 1501.  Suffice it to say, our examination of the regulation discloses its purpose is to requirenotice ofproposed structures or alteration of existing structures, suchnotice to be used to provide information for navigational charts or other methods of notifying airmen of the location of possible hazards.

            Accordingly, since the state statute governs marking of hazards (excepting structures required to be marked by federal regulations)  [[Orig. Op. Page 4]] and the federal regulation merely requiresreporting of structures, there is not in our opinion any conflict; therefore you should require compliance with the law as enacted by the legislature.

            It necessarily follows that filing the notice required by the federal agency does not satisfy the reporting requirements of the state act.  Both agencies, in the performance of the duties imposed by their respective statutes, must have the information necessary for them to carry out their respective mandates.  We therefore are of the opinion that your second question must also be answered in the negative.

             We trust the foregoing will be of assistance to you.

Very truly yours,

 JOHN J. O'CONNELL
Attorney General 

R. TED BOTTIGER
Assistant Attorney General