In the present case, New Mexico has the authority to control US Airways’ distribution of alcohol in airplanes that are in New Mexico airspace for two reasons. First, New Mexico has concurrent jurisdiction with the federal government over events occurring in its airspace. See Braniff, 347 U.S. at 595; Cleveland, 985 F.2d at 1444. Thus, the in-flight service of alcohol is “[t]he transportation or importation into any State . . . for delivery or use therein of intoxicating liquors.†U.S. Const. Amend. XXII, § 2. Second, even lacking concurrent jurisdiction, New Mexico has the authority to regulate liquor moving through its territory and may take “appropriate steps to prevent the unlawful diversion†of the alcohol into its regulated market. See North Dakota, 495 U.S. at 431-32. US Airways cites Collins v. Yosemite Park & Curry Co., 304 U.S. 518 (1938) for the proposition a state cannot require a license in order to transport alcohol into an exclusively federal enclave. [Doc 65 at 32] The Supreme Court, however, later explained that the decision in Collins “might have been otherwise if California had sought to regulate or control the transportation of the liquor there involved from the time of its entry into the State until its delivery at the national park, in the interest of preventing unlawful diversion into her territory.†North Dakota, 495 U.S. at 431-32 (internal quotation marks and citation omitted). Accordingly, this Court is satisfied that US Airways’ activity is encompassed by the strictures of the Twenty-first Amendment.
