STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

June 24, 1969

L. V. Hanson, Director
South Dakota Aeronautics Commission
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-54

Authority of Aeronautics Commission to order the closing of a private airport which has never been approved by the Commission and operation of which has been determined to be hazardous to a nearby municipally owned airport

Dear Mr. Hanson:

You have requested an opinion based on the following factual situation:

"A certain municipal airport has been approved and operative for approximately ten years. It was constructed with local, state and federal funds. Recently a private airport has been constructed one and one-half miles from the municipal airport. Prior to this time the Commission has not received an application for construction, use or operation of this private airport. No application or approval has ever been issued by the Aeronautics Commission. Further, it is the findings of the Commission that the private airport creates a hazard to persons landing and taking off from both it and the municipal airport due to the conflicting air traffic operations."

You have asked the following specific question:

"Does the South Dakota Aeronautics Commission have the authority to prevent the use of a privately owned airport, the construction of which has never been approved by the Commission and which has been determined to be a safety hazard."

Airport is defined in SDCL 50-1-1(4) which states:

"'Airport' means any area, either of land or water, which is used, or intended for use, for the landing and takeoff of aircraft, and any appurtenant areas which are used, or intended for use, for airport buildings or other airport facilities or rights of way, together with all airport buildings and facilities located thereon;"

The same statute at SDCL 50-1-1(9) states:

"'Landing Field' means any area, either land or water, which is used or which is made available for the landing and takeoff of aircraft, which mayor may not provide facilities for the shelter, supply, and repair of aircraft, which meets the minimum requirements as to size, design, surface marking, equipment, and management as may from time to time be provided by the South Dakota Aeronautics Commission; . . ."

For the purposes of this opinion, I shall assume that the privately owned airport falls within the definition of "an airport" or a "landing field." Considering first the fact that the privately owned airport is unapproved by the Aeronautics Commission, I call attention to SDCL 50-5-1:

"Application for commission approval of airport facilities-Immediate consideration by commission required.-All owners and operators of all airports, landing fields, air schools, and flying clubs and the owners and operators of all air beacons and other air navigation facilities shall make application to the South Dakota aeronautics commission for its approval for such airports, landing fields, air schools, flying clubs, air beacons, and other air navigation facilities and the commission shall immediately consider and pass upon such applications."

Following this SDCL 50-5-2:

"Use without approval prohibited.-All proposed airports, landing field, air schools, flying clubs, air beacons, or other air navigation facilities shall first be approved by the aeronautics commission before they, or any of them, shall be so used or operated."

This same chapter provides that unauthorized use of such facilities is a misdemeanor at SDCL 50-5-5. More germane to your question, however, is at SDCL 50-5-7:

"Order closing unapproved facilities.-In any case where the aeronautics commission may deem it necessary, it may order the closing of any airport, landing field, or order any air school, flying club, or air beacon, or other air navigation facility to cease operations until it shall have complied with the requirements laid down by the commission."

From a reading of the above, it appears that there is a clear statutory authority in the commission to enforce the closing of unapproved facilities. Alternatively, the same question may be considered in view of the commission’s determination that the privately owned airport presents a safety hazard. I shall confine this portion of the opinion to discussion of the statutory authority of the Aeronautics Commission to promulgate rules and regulations in this area and I shall not attempt to discuss those rules and regulations which are in force or to determine whether those rules would presently forbid construction and operation of this airport.

SDCL 50-2-6:

"Rules and regulations-Design and location of landing areas.-The aeronautics commission is empowered to prescribe such reasonable rules and regulations as it may deem necessary and advisable for the public safety and for the promotion of aeronautics, governing the designing, laying out, location, building, equipping, operation, and use of all airports, landing fields, or landing strips."

Likewise, the Commission is given further powers in SDCL 50-2-9:

"Rules and regulations-Air traffic regulation.-The aeronautics commission is empowered to prescribe such reasonable air traffic rules and regulations as it shall deem necessary for public safety and the safety of those engaged in aeronautics and for the promotion of aeronautics."

An even more sweeping power is given by SDCL 50-2-11:

"Rules and regulations-Safety measures.-The aeronautics commission is empowered to prescribe all other reasonable rules and regulations as it shall deem necessary for the public safety and the safety of those engaged in aeronautics, and for the promotion of aeronautics."

Consideration of this statutory authority leads to the conclusion that given the proper rules and regulations, the Aeronautics Commission does have the power to close the privately owned airport which it considers a safety hazard.

It is, therefore, my opinion that the Aeronautics Commission does have the statutory authority to close a privately owned airport in the fact situation which you have presented.

Respectfully submitted,

Gordon Mydland
Attorney General