By Erin Herbold
Iowa State University Center for Agricultural Law and Taxation

Crop dusting is an important practice in many regions of the country.  While it does pose certain liability risks (spray drift and accidents, just to name a couple), it is an economical way to apply chemicals to relatively larger fields.  Also, the federal government may have jurisdiction over crop-dusting activities, as this case points out.

Here, the Federal Aviation Administration (FAA) received a complaint about a crop duster flying too low over an intersection and three nearby homes. The FAA inspector assigned to the area investigated the low flying issue and issued a warning to the crop duster that he must file a "congested area plan" before flying over any possible congested area or the agency would file an enforcement action. The crop duster inquired about the meaning behind "congested area" and the FAA investigator responded by saying that no "precise" definition existed. The only advice the investigator offered was that "a group of ... as few as two or three houses ... may be considered congested."  While the filing of a "congested area" plan is not, in itself, an admission that the proposed flight zone is congested, it does serve as a safeguard against an FAA enforcement action. In the months following the FAA investigator's warning, the crop duster flew his plane near the same intersection. The crop duster never filed a congested area plan before his flights. The FAA received several complaints from neighbors in the area regarding the crop duster's supposed "low flying."

Thus, the FAA instituted an enforcement action against the crop duster and the farmer that hired him.

An administrative law judge determined that the area was a "congested area" and that finding was upheld by the FAA enforcement board.  As a result, civil penalties were upheld against both the crop duster and the farmer.  On appeal, the crop duster and the farmer argued that the term "congested area" should be declared unconstitutionally vague under the Due Process Clause. They further argued that there was no substantial evidence that flights occurred over a "congested area."

The appellate court first addressed the FAA regulations at issue in this case- namely 14 C.F.R. §91.119.  These regulations establish "minimum safe altitudes" for crop dusting. This section of the CFR states that "except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes: (b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle."

However, the FAA regulations do provide a more "lenient" treatment for agricultural aircraft. 14 C.F.R. §137.49 specifies minimum altitude requirements for ag aircraft operating over "other than congested areas" and §137.51 regulates operations over congested areas.  In "other than congested areas" the aircraft may be operated under 500 feet above the surface and "closer than 500 feet to persons, vessels, vehicles, and structures." However, if the area is deemed a "congested area," the aircraft must be operated at "altitudes required for the proper accomplishment of the ag aircraft operation." According to §137.51, the crop duster must operate "with maximum safety to persons and property on the surface" and the crop duster must have obtained prior written approval from the FAA and notice of the intended operation must be given to the public. Further, the crop duster must submit a plan to the FAA that considers the flight obstructions and plans for a possible emergency landing.

It is true that the FAA regulations never specifically defined "congested area." However, there is some guidance for FAA inspectors in their own handbook. Basically, the inspectors must make a "congested area" determination on a case-by-case basis. The rule is clear that the congested area must contain a city, town, or settlement. Further guidance is offered by the handbook, stating that "approximately 10 houses and a school" or "a crowded beach area along a highway" may constitute a congested area. The handbook goes on to state that there is no set number of people, ground traffic, or number of buildings or residences to fit into the definition of "congested area."

The court first analyzed the crop duster's claims that the regulation containing the term "congested area" should be declared unconstitutional.  In these cases, the petitioner must be able to show that the statutory language is "impermissibly vague" as applied to them. The U.S. Supreme Court has said, on numerous occasions, that "the degree of vagueness that the Constitution tolerates ... depends in part on the nature of the enactment. Thus, economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow..." Since this case deals with an economic regulation, the penalties are civil, not criminal. The crop duster and farmer had the opportunity to educate themselves on all of the relevant provisions and investigate the "congested area" issue further. Since the penalties are merely civil (in the form of fines) they do not have the risk of criminal prosecution or incarceration- thus, the stakes for them are lower.

The appellate court determined that the crop duster and farmer had every "reasonable opportunity to understand what conduct [the CFR] prohibits." They were warned by the FAA investigator before the enforcement action was filed that the two or three homes in the area "may" be considered a congested area. Thus, the parties failed to prove that the "congested area" regulation was unconstitutionally vague.

The court also determined that the evidence pointed to a finding that this was a "congested area." As noted above, the designation of a "congested area" is determined on a "case-by-case" basis. Even though there were only two or three homes in the area of the intersection, there were at least 30 homes in the general vicinity of the intersection. The neighbor's complaints showed that the crop duster's flights passed over the general vicinity at a low altitude.  That all supported a finding that the flight path involved a "congested area."

The lesson the case is clear.  Federal regulations governing crop-dusting may come into play when crop-dusting occurs in areas where even a minimal amount of people may be located.  Folk v. Sturgell, No. 08-2155, 2010 U.S. App. LEXIS 8352 (4th Cir. Apr. 22, 2010)

SOURCE: Iowa State University Center for Agricultural Law and Taxation.