Introduction to the FAA s Airport Law Branch Presented to: ACI-NA Fall Legal Conference By: Jonathan Cross, FAA Counsel s Office Date:
First, an airport quiz 2
That was too easy how about this one? 3
Here? 4
You ll never guess 5
What do we do? Provide legal advice, counsel, and guidance to: FAA Headquarters and regional offices, including Airport District Offices (ADO) Office of the Secretary of Transportation Transportation Security Department of Justice Congressional members and staff state and local government officials private counsel general public 6
Our practice area includes: Airport noise and access restrictions Federal preemption (49 U.S.C. 40103 and 41713) Rates and charges Enforcement of grant assurances through 14 C.F.R. Part 16 Airport privatization Passenger Facility Charge (PFC) program (including airline bankruptcy issues) Airport capacity and congestion Competition plans Airport Improvement Program (AIP) Rail access to airports Use of airport revenue (revenue diversion) Runway protection zone (RPZ) issues, land acquisition, takings and inverse condemnation Surplus Property Act of 1944 Disadvantaged Business Enterprise (DBE) Program 7
Part 16 Statistics FY 2009 13 complaints filed 2 final agency decisions (FAD) issued 1 hearing officer initial decision 6 director s determinations (DD) issued 1 stay issued in notice of investigation (NOI) 8
Part 16 Statistics FY 2008 16 complaints filed (includes NOI) 2 dismissed as incomplete (neither refiled). 3 dismissed on procedural grounds before decision issued. 10 awaiting decisions. 1 DD issued and appeal to Associate Administrator pending. 4 FADs issued. 6 DDs issued (none appealed). 4 cases appealed to U. S. Courts of Appeals. 3 decisions 1 withdrawn 9
Part 16 Courts of Appeals Decisions Penobscot Air Services, Ltd. v. FAA, 164 F.3d 713 (1st Cir. 1999). J. Andrew Lange v. FAA, 208 F.3d 389 (2d Cir. 2000). Arapahoe County Public Airport Authority v. FAA, 242 F.3d 1213 (10th Cir. 2001). Boca Airport, Inc. v. FAA, 389 F.3d 185 (D.C. Cir. 2004). Wilson Air Center, LLC v. FAA, 372 F.3d 807 (6th Cir. 2004). Albuquerque Valet Parking Service, et al. v. FAA, Civ. No. 03-575 ACT/LFG (D. Ct. N.M. 2004). (Filed with 10th Cir. but transferred to district court). City of Naples v. FAA, 409 F.3d 431 (D.C. Cir. 2005). Flamingo Express, Inc. v. FAA, 536 F.3d 561 (6th Cir. 2008). BMI Salvage Corp. v. FAA, 272 Fed.Appx. 842, 2008 WL 927900 (11th Cir. 2008). R/T 182, LLC v. FAA, 519 F.3d 307 (6th Cir. 2008). 10
Town of Grant-Valkaria, Florida, request for legal opinion on ordinance Brevard County owns and operates airport, which is located within Town. Airport obligated under 1958 SPA deed. Airport must be used for public airport purposes on reasonable terms and without unjust discrimination and without grant or exercise of any exclusive right for use of the airport. Airport has 67 based aircraft and about 33,000 operations per year. 11
The Grant-Valkaria Ordinance No commercial flight training or instruction, or commercial flight training or instruction schools, shall be based in the local zoning district (which includes the Airport). Grandfather clause for current uses permits current flight schools (there are none) and instructors to remain based at Airport. 12
FAA Approach Federal Government has preempted airspace use and efficiency, air traffic control, safety, navigational facilities, and aircraft noise at its source. Exception for airport proprietors to impose noise regulations to avoid liability for excessive noise (not applicable here). Non-proprietors are prohibited from using police powers to control aircraft noise may only mitigate the effects of the noise, such as adopting noise abatement plans that do not impinge on aircraft operations. Non-proprietors vested only with power to establish acceptable noise levels for the airport and its environs that do not impede Federal interest in safety and airspace management. 13
Preempted? Yes Non-proprietor Town has no legal authority to regulate type of aeronautical businesses that may be permitted to lease space at Airport. Non-proprietor Town may not regulate types of flight operations that can be conducted at Airport, including determining whether airport users are based or transient. Ordinance would have prohibited airport owner from leasing aeronautical space to any flight school and/or flight instructor. Direct Effect amounted to restriction on type and level of flight operations that could be conducted at Airport. Clear from record that Town was attempting to regulate aircraft noise, safety, and flight operations. Flight instruction and pilot training are legitimate aeronautical activities, which must be reasonably accommodated. 14
Tweed-New Haven Airport 15
Issue Tweed-New Haven Airport Authority requested legal opinion from FAA. Question: whether a non-proprietor municipality (Town of East Haven) may regulate construction of an aviation safety project (Runway Safety Areas) being carried out by the airport sponsor entirely within the airport boundaries. 16
New Haven 1 Tweed Airport located both in East Haven and New Haven municipal boundary runs down center of Runway 2/20. Since 1967, East Haven has filed series of law suits opposing expansion of Tweed Airport. Late 1960 s, FAA provided grant funding for runway extension to facilitate jet aircraft. City purchased 73 acres in East Haven for RPZ for extended runway. Conn. Supreme Court held acquisition unlawful because East Haven did not have opportunity to approve/disapprove acquisition. City continued to operate extended runway until court issued contempt order. United States sued for injunctive relief to restrain enforcement of state court order so runway could become operational again. 17
New Haven 2 U.S. v City of New Haven, 447 F.2d 972 (2d Cir. 1971) court affirmed district court PI. See also U.S. v. City of New Haven, 496 F.2d 452 (2d Cir. 1974) (PI affirmed). RPZs embrace navigable airspace subject to sole jurisdiction of US. Navigable airspace includes airspace needed to insure safety in takeoff and landing. Court confirmed that state may not deny access to navigable airspace. 18
New Haven 3 Tweed currently has sub-standard RSAs at either end of Runway 2/20, the principal air carrier runway. To the north, municipal road. To the south, inland and tidal wetlands. As a result, Tweed has only 200 feet of RSA at each end should have 1,000 feet. RSAs enhance safety of air travelers by providing buffer zone at runway ends in event of aircraft undershoot, overshoot, or excursion from runway. Master Plan calls for enlargement of sub-standard RSAs about $21 million in AIP funds involved extensive EIS process. Plans provide for moving road northward and mitigating wetlands to be able to establish 1,000 foot RSAs. Project to take place within pre-existing airport boundaries. In February 2008, East Haven s Inland Wetland and Watercourse Commission issued Stop Work/Cease and Desist Order, which ordered all work on East Haven portion of RSA project to stop. 19
New Haven 4 After attempted settlement and refusal of East Haven to withdraw order, Tweed filed for preliminary injunction in federal district court. Tweed asked FAA for legal opinion on preemption issue. FAA found that non-proprietor jurisdictions, like East Haven, have no role in determining the legal requirements for runway expansion and development within the boundaries of the existing airport. FAA further found that Federal law preempts local ordinances designed to control and impede air navigation facilities, airport safety projects, or development projects on airport property at commercial service airports as a means of controlling aircraft noise, and to otherwise control flight operations and impede safe and efficient airspace management. 20
Federal District Court Decision In an August 24, 2008 decision, Tweed-New Haven Airport Authority v. Town of East Haven, 582 F. Supp. 2d 261 (D. Conn. 2008), the court held that the FAA Act impliedly preempted the East Haven regulations because Congress intended to regulate (i.e., fully occupy) the field of airline safety within which the RSA project lies. Therefore, any East Haven regulation which acts to prevent the work provided for in the RSA project, and any cease and desist order stopping that project, is preempted by federal law. Court found no express preemption under 49 U.S.C. 41713 Tweed failed to show that East Haven s regulatory actions affected an air carrier s rates, routes, or services at the airport. On January 15, 2009, court denied East Haven s motion for reconsideration, motion to modify judgment, and motion for stay. 21
Native American Employment Preference in AIP Funded Contracts Colorado River Indian Tribe (CRIT) includes four distinct Tribes - the Mohave, Chemehuevi, Hopi and Navajo. There are currently about 3,500 active Tribal members. 22
Native American Employment Preference 2 CRIT owns and operates the Avi Suquilla Airport in Parker, Arizona. CRIT applied for AIP grant. FAA Regional Office expressed concern about provision in bidding specs requiring compliance with a tribal preference in hiring, subcontracting, etc. Under CRIT s Labor Code, however, where tribal preference is prohibited by Federal law, first preference provided to local Indians. Final preference to all other Indians. Local Indian is one who resides within, or no more than 25 miles from, the exterior boundaries of the Colorado River Reservation and has so resided for not less than 6 months from commencement of employment. Since tribal preferences are prohibited, the question was whether CRIT s savings clause ( local Indians ) was consistent with FAA s nondiscrimination statute and 49 C.F.R. Part 18 (DOT Admin. Requirements for Grants). 23
Native American Employment Preference 3 Section 18.36(c)(2): Grantees and subgrantees will conduct procurements in a manner that prohibits the use of statutorily or administratively imposed in-state or local geographic preferences in the evaluation of bids or proposals, except in those case where applicable Federal statutes expressly mandate or encourage geographic preference. Under Federal law, CRIT s preference for local Indians is political rather than geographic. As a result, the preference does not violate Part 18 or nondiscrimination statute. Federal law provides generally for Indian preferences on or near Indian reservations. E.g., Civil Rights Act of 1964 (42 U.S.C. 2000e(2(i)): Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice or such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation. 24
Santa Monica - Update 25
FAA s May 27, 2008 Director s Determination Implementation of the adopted Ordinance prohibiting Category C and D aircraft by the City of Santa Monica is not consistent with: Federal obligation to make its airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds, and classes of aeronautical activities (Grant Assurance 22). Federal obligation prohibiting the granting of an exclusive right at the airport to conduct any aeronautical activities (Grant Assurance 23). Surplus Property Act of 1944 deed covenants. Terms of the 1984 Settlement Agreement. Federal preemption law. 26
FAA Hearing Officer s May 14, 2009 Initial Decision Ordinance unreasonably and unjustly discriminates against classes of aeronautical activities and thus violates Grant Assurance 22. Ordinance does not grant an exclusive right. Ordinance unreasonably and unjustly discriminates in the operation of the Airport and thus violates the City s obligations under its SPA deed and the 1984 Settlement Agreement. Preemption doctrine does not provide independent basis for FAA administrative action against City under Part 16. 27
FAA s July 8, 2009 Final Agency Decision Decision both affirmed and reversed in part the Hearing Officer s Initial Decision. 1) FAA occupies the field of aviation safety and thus Federal law preempts the City s ordinance (reversed). 2) Ordinance violates Grant Assurance 22 because it is a discriminatory restriction against operators of C and D aircraft and not necessary for the safe operation of the airport (affirmed). 3) FAA did not show nexus between ordinance and anti-competitive result - therefore no violation of Grant Assurance 23 (affirmed). 4) Part 16 is an inappropriate forum to resolve disputes arising under the 1984 Settlement Agreement. 5) Because FAA did not seek the remedy of reverter, there is no need to decide whether the Ordinance violates the SPA (reversed). 28
Appeal to D.C. Circuit City of Santa Monica filed a petition for review on September 1, 2009. Statement of issues to be raised, dispositive motions, etc. due on October 13. FAA s Certified Index to the Record is due October 26. 29
Some additional pending legal issues May an airport sponsor base the eligibility for a fee waiver or discount on a distinction between interstate and intrastate air service? How can the FAA provide grant funds to a deteriorating private GA airport where the owner/sponsor has embezzled more than $375,000 from the FAA in prior grants, where no other sponsor is stepping forward? (Owner to be sentenced in December 2009.) Whether Burbank s application for a Stage 3 restriction (nighttime curfew) meets the requirements of ANCA and Part 161. Whether common-use kiosks are eligible for PFC funding. 30
Questions? 31