Generally, the U.S. government has exclusive sovereignty of airspace of the U.S. and it may reasonably regulate air traffic therein regardless of whether it is interstate or intrastate traffic. But, that sovereignty of the air however does not authorize the federal government, under the guise of police powers, to interfere with the lower airspace over a private owner’s property, the use of which is intrastate and which is necessary and beneficial to the reasonable enjoyment of his/her land[i].
Pursuant to 49 USCS § 40102 (27), intrastate air transportation means “the transportation by a common carrier of passengers or property for compensation, entirely in the same State, by turbojet-powered aircraft capable of carrying at least 30 passengers.” And interstate transportation includes carriage between two or more points within a state when it is part of a longer journey commencing from or destined to another state. However, it is obvious that air carriers transporting intrastate traffic between points in a single state also carry interstate traffic[ii]. Generally, activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce.
Accordingly, the power of Congress over interstate transportation also extends to those intrastate activities which so affect the interstate transportation. The fact that intrastate transactions is so interwoven with the interstate transportation, and that the effective control of interstate commerce by Congress incidentally controls intrastate commerce do not control the power of Congress to regulate interstate commerce[iii].
Likewise, the full control by Congress of the subjects committed to its regulation is not to be denied or opposed by the combination of interstate and intrastate operations. Wherever interstate and intrastate transactions are so related that the government of the one involves the control of the other, it is Congress, and not the state that is entitled to prescribe the final and dominant rule[iv].
In California v. Civil Aeronautics Board, 581 F.2d 954 (D.C. Cir. 1978), the court observed that “Congress possesses the power to regulate and protect interstate commerce even though intrastate transactions may be controlled thereby. In removing the injurious discriminations against interstate traffic arising from the relation of intrastate to interstate rates, Congress is not bound to reduce the latter below what it may deem to be a proper standard.”
[i] Strother v. Pacific Gas & Electric Co., 94 Cal. App. 2d 525 (Cal. App. 1949).
[ii] California v. Civil Aeronautics Board, 581 F.2d 954 (D.C. Cir. 1978).
[iii] Pioneer Airways, Inc. v. Kearney, 199 Neb. 12 (Neb. 1977).
[iv] Application of Frontier Airlines, 175 Neb. 501 (Neb. 1963).