Williams v. SUPERIOR COURT, IN & FOR CTY. OF PIMA, ETC.

HOLOHAN, Justice

(dissenting) :

I dissent from the position taken by the majority and I would reverse the decision of the trial court and direct that judgment be entered in favor of Petitioners dismissing the action filed by the Respondent.

The opinion of the Court of Appeals in this cause, 489 P.2d 854, in my view ably states the correct principles of law governing this case. I fully agree with Judge Howard, the author of the opinion, when he states:

“From the broad scope of federal statutes and regulations governing and controlling the use of airspace and air traffic, we conclude that Congress intended to centralize full and dominant control of the navigable airspace in the federal government so as to provide for its safe and most efficient use. Lockheed Air Terminal, Inc. v. City of Burbank, [318 F.Supp. 914] supra; American Airlines, Inc. v. Town of Hempstead, 398 F.2d 369 (2d Cir.1968), cert. denied 393 U.S. 1017, 89 S.Ct. 620, 21 L.Ed.2d 561 (1969).
“The result of the relief asked for by the respondent in this action would, . . constitute a direct regulation of the flight of aircraft through navigable airspace.
“This court has, of course, great concern for the welfare and safety of the children in this community. However, this concern does not permit us to wade in forbidden waters. Indeed, if the record did in fact disclose violations of the FAA regulations, the proper forum *161would not be a court of this state but rather, the United States District Court.”

In addition, the position that the action sought by Respondent constitutes an interference with interstate commerce is illustrated by the holding in one of the cases relied upon by the majority, Loma Portal Civic Club v. American Airlines, Inc., 61 Cal.2d 582, 39 Cal.Rptr. 708, 394 P.2d 548 (1964). In the cited case the California Supreme Court affirmed the refusal of the trial court to grant an injunction sought by owners of property near a public airport to enjoin certain flight operations because of noise, vibration and “apprehension to many people.” That court held that a commercial airline operating in conformity with federal law shall be without interference by the injunctive process.

The California Supreme Court in the cited case pointed out that there is extensive federal enforcement procedures and punishment provided for violation of federal law, and that such proceedings may be initiated by complaint of any interested party; see generally 49 U.S.C. §§ 1429, 1471— 1474, 1481-1489.

The remedy of the respondents is in a federal forum, and/or action for damages in inverse eminent domain against proper parties. It is to be noted that respondent filed such an action prior to the complaint in this cause.

Further, in my judgment, injunctive relief is not permitted in this cause because it would be in violation of the provision of A.R.S. § 12-1802, subsections 4 and 6. The interests involved in this action represent important considerations of public interest. This action has placed in conflict the elements of defense and education. It is not sufficient to state that the one must adjust its hours to fit the other. Are the courts to make this decision ? In my judgment the above cited statute was enacted for the purpose of forbidding courts of this state from restraining legitimate public interests even though at times these protected and public interests may clash. The remedy in the courts is for the so-called injured party to seek recovery by way of damages. In this instance additional remedies are available in the federal forum both administratively and in the District Court.

The training exercises carried out by the National Guard are part of a legal and required duty imposed by the command structure of the National Guard and pursuant to the requirements of the Secretary of the Air Force. The record discloses, even as respondent below alleged, that pilots from other state guards are being trained at the Tucson facility. This type of training is pursuant to the authority granted the Secretary of the Air Force in 32 U.S.C. § 505. The training is being conducted by officers employed under 32 U.S.C. § 709. The training programs follow the policies and methods required and approved by the Secretary of the Air Force. The authority of the federal government to act in this field is pursuant to Article I, Section 8 of the Constitution:

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”

This is yet another reason why the state court has no jurisdiction to issue an injunction which in effect restrains the authorized, approved and prescribed program of the Secretary of the Air Force. No state court has authority to interfere with such a federal program.

Nor does calling the National Guard a state agency solve the problem. Both the constitution and the federal statutes provide that the activities of the Guard may be regulated by the federal government. It is clear from the record that the Secretary of the Air Force has acted and insofar as the activities in this case are concerned they are part of a federal activity by a state agency under the direction and re*162quirements prescribed by the Secretary of the Air Force.

The action of the Court today casts a cloud on an important program of training pilots of this state and other 'states. The Secretary of the Air Force is faced with the possibility of an endless variety of injunctive acts by local courts on the complaint of any citizen. Such possibilities are in violation of the federal constitution and certainly constitute a frustration of the national policy to train and prepare the men of the Air National Guard for national defense, and the decision today gives to the Superior Court the power to regulate the use of airspaces at least by military aircraft. This result is not only unconstitutional but most unsound.