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Suggested Citation:"III. LEGAL PRINCIPLES." National Academies of Sciences, Engineering, and Medicine. 2015. A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport. Washington, DC: The National Academies Press. doi: 10.17226/22208.
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Suggested Citation:"III. LEGAL PRINCIPLES." National Academies of Sciences, Engineering, and Medicine. 2015. A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport. Washington, DC: The National Academies Press. doi: 10.17226/22208.
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Suggested Citation:"III. LEGAL PRINCIPLES." National Academies of Sciences, Engineering, and Medicine. 2015. A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport. Washington, DC: The National Academies Press. doi: 10.17226/22208.
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Suggested Citation:"III. LEGAL PRINCIPLES." National Academies of Sciences, Engineering, and Medicine. 2015. A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport. Washington, DC: The National Academies Press. doi: 10.17226/22208.
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Suggested Citation:"III. LEGAL PRINCIPLES." National Academies of Sciences, Engineering, and Medicine. 2015. A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport. Washington, DC: The National Academies Press. doi: 10.17226/22208.
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Suggested Citation:"III. LEGAL PRINCIPLES." National Academies of Sciences, Engineering, and Medicine. 2015. A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport. Washington, DC: The National Academies Press. doi: 10.17226/22208.
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Suggested Citation:"III. LEGAL PRINCIPLES." National Academies of Sciences, Engineering, and Medicine. 2015. A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport. Washington, DC: The National Academies Press. doi: 10.17226/22208.
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Suggested Citation:"III. LEGAL PRINCIPLES." National Academies of Sciences, Engineering, and Medicine. 2015. A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport. Washington, DC: The National Academies Press. doi: 10.17226/22208.
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Suggested Citation:"III. LEGAL PRINCIPLES." National Academies of Sciences, Engineering, and Medicine. 2015. A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport. Washington, DC: The National Academies Press. doi: 10.17226/22208.
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Suggested Citation:"III. LEGAL PRINCIPLES." National Academies of Sciences, Engineering, and Medicine. 2015. A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport. Washington, DC: The National Academies Press. doi: 10.17226/22208.
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Suggested Citation:"III. LEGAL PRINCIPLES." National Academies of Sciences, Engineering, and Medicine. 2015. A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport. Washington, DC: The National Academies Press. doi: 10.17226/22208.
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Suggested Citation:"III. LEGAL PRINCIPLES." National Academies of Sciences, Engineering, and Medicine. 2015. A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport. Washington, DC: The National Academies Press. doi: 10.17226/22208.
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8 airport operators can suggest and recommend that aircraft owners and operators conduct flight operations in particular ways; the Airport Sponsor Assurances are implicated only by mandatory re- strictions or actions that have the effect of limit- ing access. 3. Fines and penalties—GA airport operators impose varied fines and penalties for violations of mandatory limits on access. An airport operator may demand that an aircraft immediately depart from the airport, seek to impose monetary fines, or seek to terminate a lease agreement on the ba- sis that a violation of an airport’s rules and regu- lations constitutes a default of the lease agree- ment. The imposition of any of these consequences could implicate the Airport Sponsor Assurances. 4. Documentation—Direct limits on access, whether mandatory or voluntary, can be docu- mented in many different ways. For example, lim- its may be documented in a local ordinance, in airport rules and regulations or minimum stan- dards, or in the Airport/Facility Directory. A con- dition on access may be captured in a lease or other written agreement. Limits on access may not be documented and instead may have origi- nated by a verbal directive of airport management (or perhaps were conveyed in written correspon- dence but not formally adopted by the airport gov- erning body). Informal policies and voluntary measures may evolve over time into mandatory restrictions (or the perception and belief that the limits are mandatory). In some disputes, the first task has been to identify with certainty the origin of a limit on access in order to fully understand its nature and scope. 5. Frequency of occurrence—Another character- istic of limits on access is how frequently they oc- cur at GA airports around the country. It is diffi- cult to quantify frequency because restrictions may be documented in different places or may not be documented at all. To help gauge the frequency of certain limits on access, the authors of this Guide have analyzed the only comprehensive source of information on airports: the Air- port/Facility Directory published by FAA. The results of this analysis are provided in the Aeronautical Activity Fact Sheets contained in Appendix A. III. LEGAL PRINCIPLES A. Constitutional Law The primary goal of this Guide is to provide a user-friendly resource that describes how the Air- port Sponsor Assurances and other federal obliga- tions apply to limitations on access at GA air- ports. A lengthy dissertation on abstract legal principles is not required to achieve this objective. However, there are two basic principles of consti- tutional law that are foundational to this subject area. These principles affect the essential balance of power between the federal government and the state and local governments that own and operate GA airports. 1. Federalism and the Tenth Amendment A bedrock principle in the United States is that the power to govern is shared between the federal government and state governments in the manner prescribed by the U.S. Constitution. The Tenth Amendment to the U.S. Constitution provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” In general, the ownership, operation, and regu- lation of GA airports is not a power conferred upon or delegated to state and local governments by the federal government but rather a power re- served to state and local governments. Airport operators derive their authority to maintain, op- erate, and regulate airports by virtue of some combination of: 1) general delegations of authority in a state constitution or state statute; 2) specific delegations of authority in, for example, state and local enabling legislation for airport authorities and other special-purpose entities; and 3) inher- ent powers attendant to the ownership of real property that constitutes the airport. For addi- tional information on the powers conferred under state law, see ACRP Legal Research Digest 15, Compilation of State Airport Authorizing Legisla- tion. 2. Supremacy Clause and Preemption The right grounded in state law to own, oper- ate, and regulate GA airports may be subject to and constrained by the legitimate exercise of power by the federal government as authorized by the Constitution. With regard to airports, the fed- eral government exercises its authority princi- pally pursuant to the Commerce Clause of the U.S. Constitution, which gives Congress the power “to regulate commerce…among the several states….”3 In areas subject to federal regulation, federal law is superior to state law. The legal concept of preemption arises principally from the Supremacy 3 U.S. CONST. art. I, § 8, cl. 3.

9 Clause of the U.S. Constitution, which provides that the laws of the United States are superior to laws of the several states.4 There are two basic categories of preemption: 1) express preemption, in which the federal law states explicitly that it displaces state and local regulation of conduct within the scope of the preemption provision, and 2) implied preemption, in which state or local law is displaced by virtue of a conflict with federal law or by evidence of congressional intent to occupy the entire field of a substantive area of law. Preemption is a significant constraint on the ability of GA airport operators to adopt limita- tions on access. As examined below, multiple fed- eral laws delegate specific responsibilities to FAA in the areas of airspace, aircraft, and pilots. In an effort to succinctly summarize the preemptive ef- fects of these federal laws, the following general legal principles are offered here and detailed in subsequent sections of the Guide. First, the United States has complete sover- eignty over the navigable airspace.5 This exclusive jurisdiction over airspace is coupled with compre- hensive federal regulation of aviation safety and air traffic control. The combined effect is that state and local governments, including GA airport operators, are preempted from regulating aircraft in flight.6 Only FAA can impose or approve man- datory flight procedures such as arrival and de- parture procedures, flight tracks, and noise abatement flight procedures.7 Second, courts have stated uniformly that a lo- cal government entity that is not the airport pro- prietor is preempted from imposing access restric- tions at an airport.8 Nonproprietors can exercise 4 U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). 5 See, e.g., 49 U.S.C. § 40103 (2014); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973); Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 303 (1944). 6 See, e.g., Nat’l Helicopter Corp. of Am. v. City of N.Y., 137 F.3d 81 (2d Cir. 1998); Price v. Charter Twp. of Fenton, 909 F. Supp. 498 (E.D. Mich. 1995); United States v. City of Blue Ash, 487 F. Supp. 135 (S.D. Ohio 1978) aff’d 621 F.2d 227 (6th Cir. 1980). 7 See, e.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 382 (1992); Northwest Airlines, 322 U.S. 292. 8 See, e.g., City of Burbank, 411 U.S. at 649; Pirolo v. City of Clearwater, 711 F.2d 1006 (11th Cir. 1983); San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306 traditional land use and police powers outside the airport but cannot impose restrictions on airport operations, such as curfews or other noise restric- tions.9 GA airport operators can adopt limits on access to an airport.10 This authority—sometimes referred to as the “proprietor’s exception”—is sub- ject to several important constraints, including the following: • The restriction must be “reasonable, nonarbi- tary and not unjustly discriminatory.” • The restriction is subject to generally appli- cable constitutional limits, such as Equal Protec- tion, Due Process, and the Commerce Clause. • The restriction is subject to specific federal statutes, such as the Airport Noise and Capacity Act (ANCA) and 49 United States Code (U.S.C.) § 47107, as well as the Airport Sponsor Assur- ances. • The restriction cannot directly regulate air- craft in flight. Applying these principles, courts have declared that some access restrictions are preempted,11 (9th Cir. 1981). See also Letter from Daphne A. Fuller, Assistant Chief Counsel, FAA, to Karl Bohne, Town Attorney, Town Council of Grant-Valkaria, Fla. (Aug. 7, 2009) ([T]he Town [of Grant-Valkaria, FL], as a nonproprietor, has no legal authority to use its police powers to regulate the type of aeronautical businesses that may be permitted to lease space at the Airport nor may the Town regulate the types of flight opera- tions that can be conducted at the Airport, including determin- ing whether airport users are based or transient.). 9 See, e.g., City of Burbank, 411 U.S. at 649; Price, 909 F. Supp. 498; Command Helicopters, Inc. v. City of Chicago, 691 F. Supp. 1148 (N.D. Ill. 1998); Condor Corp. v. City of St. Paul, 912 F.2d 215, 219 (8th Cir. 1990); Faux-Burhans v. Cnty. Comm’rs of Frederick County, 674 F. Supp. 1172 (D. Md. 1987); Pirolo, 711 F.2d at 1009–10; City of Blue Ash, 487 F. Supp. 135. 10 City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 635 n.14 (1973); British Airways Bd. v. Port Auth. of N.Y. and N.J., 558 F.2d 75, 84 (2d. Cir. 1977); Santa Monica Airport Ass’n v. City of Santa Monica, 659 F.2d 100, 104 (9th Cir. 1980); Pirolo, 711 F.2d 1006. 11 See, e.g., Arapahoe Cnty. Pub. Airport Auth. v. FAA, 242 F.3d 1213, 1224 (10th Cir. 2001) (“[T]he Authority unreasonably exercised its proprietary powers to ban scheduled passenger service at Centen- nial Airport….”); Skydiving Ctr. of Greater Wash. D.C., Inc. v. St. Mary’s Cnty. Airport Comm’n, 823 F. Supp. 1273, 1284 (D. Md. 1993) (noting the airport’s prohibi- tion on all parachute operations is preempted); United States v. Cnty. of Westchester, 571 F. Supp. 786, 797

10 while other access restrictions are not pre- empted.12 There are limited instances in which different courts looking at the same access restric- tion have arrived at different conclusions on the issue of preemption.13 Finally, state and local laws that purport to regulate the flight of aircraft, including land use permit conditions, are preempted regardless of whether the airport is owned by a public or pri- vate entity or whether the airport serves commer- cial airlines or GA pilots. The Maryland Court of Appeals, in a case challenging a conditional use (S.D.N.Y. 1983) (explaining that “The curfew on all night flight operations at Westchester County Airport…is an…overbroad exercise of power by the County.”); United States v. New York, 708 F.2d 92 (2d Cir. 1983) (upholding a preliminary injunction against the State of New York for imposing a nighttime ban on the use of Republic Airport.); Allegheny Airlines, Inc. v. Village of Cedarhurst, 238 F.2d 812, 815 (2d Cir. 1956) (explaining that the Village of Cedarhurst is preempted from regulating airspace less than 1,000 ft above the ground). 12 See, e.g., Nat’l Bus. Aviation Ass’n v. City of Naples Airport Auth., 162 F. Supp. 2d 1343 (M.D. Fla. 2001) (concluding that the City of Naples Airport Authority Stage 2 jet aircraft ban was not preempted); SeaAir NY, Inc. v. City of N.Y., 250 F.3d 183, 187 (2d Cir. 2001) (explaining that the plaintiff's air tours did not meet the requirements of 49 U.S.C.S. § 40102(a)(25), and therefore, plaintiff could not estab- lish that defendant's regulation of sightseeing flights was preempted); Nat’l Helicopter Corp. of Am. v. City of N.Y., 137 F.3d 81, 89 (2d Cir. 1998) (noting that week- day and weekend curfews and the weekend restrictions were of local concern, fit within the proprietor excep- tion, and were not preempted); Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977, 982 (9th Cir. 1991) (recognizing that the noise control ordinance was not preempted by federal law under the proprietary exemp- tion); Arrow Air, Inc. v. Port Auth. of N.Y. and N.J., 602 F. Supp. 314, 318–19 (S.D.N.Y. 1985) (noting that the airport proprietor's noise level restrictions were not preempted); Santa Monica Airport Ass’n v. City of Santa Monica, 659 F.2d 100, 104 (noting that the power of a municipal proprietor to enact a noise reduction or- dinance was not preempted by federal regulation); Nat’l Aviation v. City of Hayward, 418 F. Supp. 417, 425 (N.D. Cal. 1976) (ruling that the noise ordinance was not preempted by federal law); Air Transp. Ass’n of Am. v. Crotti, 389 F. Supp. 58, 64 (N.D. Cal. 1975) (holding that a state code recommending procedures to attain noise reduction standards was not preempted by federal law). 13 Compare Arapahoe Cnty. Pub. Airport Auth. v. FAA, 242 F.3d 1213, 1221 (10th Cir. 2001) with Arapahoe Cnty. Pub. Airport Auth. v. Centennial Express Airlines, Inc., 956 P.2d 587, 596 (Colo. 1998). permit imposing a curfew on, and limiting the frequency of, glider-towing aircraft, explained this issue as follows: The City of Burbank holding applies to privately owned airports as well as publicly owned ones. The Supreme Court did not make an exception for small airports that do not involve inter-airport commercial cargo or passen- ger flights, or for activities not expressly governed by fed- eral statute or regulation. If we were dealing with the sort of preemption that arises from conflict between fed- eral and state enactments, these considerations might be pertinent. But we are dealing with preemption by occupa- tion of the field. Once the field is occupied by the federal government, neither state nor local government may en- ter it. And occupation of the field does not mean that every blade of grass within it must be subject to express federal control; it means only that Congressional intent demonstrates that the area is subject to exclusive federal control, whether potential or actual.14 B. Key Federal Aviation Statutes Federal airport law has evolved over many dec- ades, beginning with the Air Commerce Act of 1926 and then followed by subsequent legislation over the years. In more recent years, substantive changes in the law have been included in legisla- tion reauthorizing the federal grant program, known as the AIP. Today, the vast majority of the law that con- trols and influences the use and development of airports is found in Title 49, Subtitle VII (Avia- tion Programs) of the U.S.C. More specifically, the most relevant statutory provisions can be found in Part A (Air Commerce and Safety), Part B (Air- port Development and Noise), and Part C (Financ- ing). These laws can be reviewed online by visit- ing the U.S. Government Printing Office Web site (www.gpo.gov) and commercial services such as Westlaw and Lexis. Although the origin of these statutory provi- sions is not as critical as understanding where the law now resides and what it says, there is benefit 14 Harrison v. Schwartz, 572 A.2d 528, 532 (Md. 1990). But cf. Goodspeed Airport LLC v. E. Haddam Inland Wetlands & Watercourses Comm’n, 634 F.3d 206, 212 (2d Cir. 2011) (“In occupying the field of air safety, Congress did not intend to preempt the opera- tion of state statutes and regulations like the ones [that do not regulate the flight of aircraft] at issue here, especially when applied to small airports over which the FAA has limited direct oversight.”). For additional discussion of these legal principles and preemption caselaw, see JODI HOWICK, ANALYSIS OF FEDERAL LAWS, REGULATIONS, AND CASE LAW REGARDING AIRPORT PROPRIETARY RIGHTS (Airport Cooperative Research Program, Transportation Research Board, Legal Research Digest No. 10, 2010), http://onlinepubs.trb.org /onlinepubs/acrp/acrp_lrd_010.pdf.

11 in reviewing the origin of certain provisions and Congress’s intent in adopting them. The following table provides a short summary of some of the key laws that affect the authority of GA airport opera- tors to regulate aeronautical activities. Table 2. Law Current Codification Summary Federal Aviation Act of 1958 49 U.S.C. § 40101 et seq. Created the Federal Aviation Agency (later transferred to Department of Transportation as the Federal Aviation Administration) with power over the regulation of safety involving airspace, aircraft, and pilots Airline Deregulation Act of 1978 49 U.S.C. § 41713 Eliminated the Civil Aeronautics Board and the federal government’s power to regulate airline routes and fares; preempted state and local government regulation of airline rates, routes, and services, subject to an exception for the exercise of airport proprietary rights Airport and Airway Improvement Act of 1982 49 U.S.C. §§ 47107–47142 Established the AIP, with funding from the Airport and Airway Trust Fund created in 1970, and required assurances from airport sponsors prior to the award of grants Airport Noise and Capacity Act of 1990 49 U.S.C. § 47521–47533 Required phase-out of heavy Stage 2 aircraft by 2000; prescribed procedures for local restrictions on light Stage 2 aircraft; prescribed procedures and required FAA approval for local restrictions on Stage 3 aircraft C. Federal Aviation Act of 1958 and FAA Jurisdiction over Airspace The Federal Aviation Act of 1958 delegated responsibility to FAA to regulate airspace and aircraft in flight.15 The U.S. Supreme Court and 15 49 U.S.C. § 40103(b)(2) (2014) (The Administrator shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for lower courts have determined that this federal law preempts local efforts to regulate the move- ment of aircraft in flight and broadly preempts the field of aviation safety. The U.S. Court of Ap- —(A) navigating, protecting, and identifying aircraft; (B) pro- tecting individuals and property on the ground; (C) using the navigable airspace efficiently; and (D) preventing collision be- tween aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.).

12 peals for the Third Circuit succinctly stated, “Our finding of implied field preemption here is based on our conclusion that the [Federal Avia- tion Act of 1958] and relevant federal regulations establish complete and thorough safety standards for interstate and international air transportation that are not subject to supplementation by, or variation among, jurisdictions.”16 The U.S. Court of Appeals for the Ninth Circuit similarly con- cluded, “The purpose, history, and language of the [Federal Aviation Act of 1958] lead us to conclude that Congress intended to have a single, uniform system for regulating aviation safety.”17 The courts’ holdings that the federal govern- ment has preempted the field of aviation safety do not entirely eliminate the rights and responsibili- ties of local governments.18 As examined further below, GA airport operators continue to play a role in assuring safety at airports. D. Airline Deregulation Act of 1978 and Proprietary Powers Congress deregulated the airline industry in the Airline Deregulation Act of 1978 (ADA). To avoid state and local governments stepping in to reregulate the industry, Congress included an express preemption provision, now codified at 49 U.S.C. § 41713(b)(1), which provides, Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may pro- vide air transportation under this subpart. This provision is relevant to GA airports in part because “air carrier” is not limited to com- mercial airlines but is defined broadly to include “a citizen of the United States undertaking by any means, directly or indirectly, to provide air trans- portation.”19 Air carriers may include air charter, air taxi, and other entities certified under 14 C.F.R. Part 135 that operate at GA airports. Although the express preemption provision may seem expansive, there is an important limit relating to the scope of preemption. Specifically, 49 U.S.C. § 41713(b)(3) explains that, “This sub- 16 Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999). 17 Montalvo v. Spirit Airlines, 508 F.3d 464, 471 (9th Cir. 2007). 18 See Abdullah, 181 F.3d at 367 (“[A]lthough the term ‘field preemption’ suggests a broad scope, the scope of a field deemed preempted by federal law may be narrowly defined.”). 19 49 U.S.C. § 40102(a)(2) (2014). section does not limit a State, political subdivision of a State, or political authority of at least 2 States that owns or operates an airport served by an air carrier holding a certificate issued by the Secretary of Transportation from carrying out its proprietary powers and rights.”20 While the con- cept of a “proprietor’s exception” arguably pre- ceded the ADA, this provision reflected and pre- served the proprietor’s exception from the express preemption provision of the statute. E. Airport and Airway Improvement Act of 1982 and the Airport Sponsor Assurances Since the initial federal aid-to-airports grant program was enacted by Congress in the Federal Airport Act of 1946, Congress has required that federal grants to airport sponsors be provided only with the assurance that the sponsor will sat- isfy specific obligations concerning the operation and development of the airport receiving funding. Indeed, several assurances, including those most relevant to the availability of GA airports for aeronautical use, were adopted initially in the 1946 legislation. As set forth in 49 U.S.C. § 47107, the Airport Sponsor Assurances are included as part of each grant agreement executed by FAA and an airport sponsor. Although the language of certain Airport Sponsor Assurances may be identical to or closely track the language of the statute, the Airport Sponsor Assurances are sometimes more expansive and reflect FAA’s interpretation and application of the statute and also include addi- tional assurances promulgated by FAA. The Airport Sponsor Assurances have the fol- lowing general features: 1. As of April 2014, there are 39 Assurances, several of which have multiple subparts. 2. A number of Assurances require satisfaction of other statutory provisions and/or FAA regula- tions, policies, and guidance. For example, Assur- ance 1 requires compliance with “all applicable Federal laws, regulations, executive orders, poli- cies, guidelines, and requirements as they relate to the application, acceptance and use of Federal funds for this project,” including 26 distinct laws, such as Title 49, Subtitle VII (Aviation Programs) of the U.S.C. Similarly, Assurance 34 requires that any grant-funded project conform to current FAA policies, standards, and specifications, in- cluding current FAA Advisory Circulars. 20 Id. § 41713(b)(3).

13 3. The Assurances generally apply for 20 years. However, the prohibition on granting an exclusive right and the requirement to use airport revenue only for airport purposes apply in perpetuity as a result of separate statutory requirements.21 Addi- tionally, the Assurances associated with the use and disposal of real property apply in perpetuity when the airport operator has received AIP funds in connection with the acquisition of property. 4. FAA has the initial jurisdiction to adjudicate allegations that an airport operator has violated one or more Airport Sponsor Assurances pursuant to 14 C.F.R. Part 16, as discussed in this Guide. Most courts to consider the issue have held that there is no private right of action to allege a viola- tion of the Assurances in court.22 Complaints to FAA can be presented informally or formally. Ju- dicial review is available to review final agency decisions and orders resolving those complaints.23 5. The penalties for violating the Airport Spon- sor Assurances may be severe. FAA may withhold approval of a grant application24 and may with- hold payment under an existing grant agree- ment.25 FAA also may seek injunctive relief in U.S. District Court.26 Although the Airport Sponsor Assurances are included in a contract between FAA and the air- port sponsor, the commitments are more than mere contracts. As the U.S. Court of Appeals for the Ninth Circuit explained, San Francisco received grant offers requiring San Fran- cisco to assure the Secretary, in language tracking the statute, that it would operate its Airport on a fair and reasonable basis and without unjust discrimination. A grant agreement based on such an offer is not an ordinary contract, but part of a procedure mandated by Congress to assure federal funds are disbursed in accordance with Congress’ will.27 21 See id. §§ 40103(e), 47133. 22 See, e.g., Four T’s, Inc. v. Little Rock Mun. Airport Comm’n, 108 F.3d 909, 915 (8th Cir. 1997); Interface Group, Inc. v. Mass. Port Auth., 816 F.2d 9 (1st Cir. 1987); Arrow Airways, Inc. v. Dade Cnty., 749 F.2d 1489, 1491 (11th Cir. 1985). 23 49 U.S.C. § 46110 (2014); see also 14 C.F.R. § 16.247 (2014). 24 49 U.S.C. § 47106(d) (2014). 25 Id. § 47111(d). 26 Id. § 47111(f). Other federal obligations may carry additional potential penalties. For example, violation of the revenue use statute may result in treble damages. See id. § 46301(a)(3). 27 City & Cnty. of S.F. v. FAA, 942 F.2d 1391, 1396 (9th Cir. 1991). The two Assurances that apply most directly to access restrictions are Assurance 22 (Economic Nondiscrimination) and Assurance 23 (Exclusive Rights). This Guide will discuss each of those As- surances in some detail. 1. Assurance 22 (Economic Nondiscrimination) While Assurance 22 has nine subparts, the most relevant provisions include the following: a. [The airport sponsor] will make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport. …. f. It will not exercise or grant any right or privilege which operates to prevent any person, firm, or corporation oper- ating aircraft on the airport from performing any services on its own aircraft with its own employees [including but not limited to maintenance, repair, and fueling] that it may choose to perform. h. The sponsor may establish such reasonable, and not unjustly discriminatory, conditions to be met by all users of the airport as may be necessary for the safe and effi- cient operation of the airport. i. The sponsor may prohibit or limit any given type, kind or class of aeronautical use of the airport if such action is necessary for the safe operation of the airport or neces- sary to serve the civil aviation needs of the public. Assurance 22 only applies to the accommoda- tion and use of an airport for “aeronautical activi- ties.” This phrase is defined by FAA as follows: Any activity that involves, makes possible, or is required for the operation of aircraft or that contributes to or is re- quired for the safety of such operations. It includes, but is not limited to: air taxi and charter operations, scheduled or nonscheduled air carrier services, pilot training, air- craft rental and sightseeing, aerial photography, crop dusting, aerial advertising and surveying, aircraft sales and service, aircraft storage, sale of aviation petroleum products, repair and maintenance of aircraft, sale of air- craft parts, parachute activities, ultralight activities, sport pilot activities, and military flight operations.28 Conversely, airport proprietors are under no federal obligation to accommodate nonaeronauti- cal users. The distinction between aeronautical and nonaeronautical users may be subtle. For ex- ample, FAA may consider an activity that is closely associated with an airport or aircraft, such as an aircraft salvage and demolition business, not to be an aeronautical use.29 28 Airport Compliance Manual, FAA Order No. 5190.6B, App. Z (Definitions and Acronyms) (Sept. 2009) (hereinafter Order 5190.6B). 29 See Final Decision and Order on Remand, BMI Salvage Corp. v. Miami-Dade Cnty., FAA Docket No. 16-05-16 (Apr. 15, 2011), aff’d, BMI Salvage Corp. v.

14 There are two separate requirements of Assur- ance 22: 1) terms of use must be “reasonable,” and 2) access must be provided without “unjust discrimination.” Access restrictions implicate both requirements. When a restriction is based on safety, FAA will apply Assurances 22(h) and 22(i) and require that the airport sponsor demonstrate that the restric- tion is necessary for the safe and efficient opera- tion of the airport or necessary to serve the civil aviation needs of the public. A restriction on ac- cess will be considered reasonable only if neces- sary to serve these purposes. FAA acts as the final arbiter on all questions of aviation safety and will substitute its own judgment for that of the airport operator as to whether a safety problem exists and whether the airport operator’s solution is ap- propriate.30 In addressing claims of unjust discrimination involving conditions on the lease and use of air- port property, FAA will consider first whether the entities in question are similarly situated and, if so, whether the disparate treatment is unjust.31 With respect to limits on access, FAA will con- sider whether the restriction applies evenhand- edly to address the source of the problem or per- ceived problem. FAA has issued numerous decisions on whether a particular access restriction satisfies Assurance 22. A sampling of those decisions is set forth in the following to illustrate how FAA approaches access cases under Assurance 22. A more complete explanation of prior FAA decisions on access re- strictions is included in the Aeronautical Activity Fact Sheets in Appendix A. • FAA found that certain restrictions on flight training, including stop-and-go operations, inter- section take-offs, touch-and-go operations, taxi- back activity, and prolonged running of aircraft engines, were not supported on the basis of FAA, No. 11-12583, 2012 U.S. App. LEXIS 14753, at *5 (11th Cir. July 19, 2012) (holding that the airport op- erator had no obligation under Assurance 22 to lease land to the operator of an aircraft salvage and demoli- tion business to provide access to the airport because aircraft demolition and salvage did not constitute an aeronautical activity). 30 Order 5190.6B, supra note 28, § 14.3. 31 See Director’s Determination, Sterling Aviation, LLC v. Milwaukee Cnty., FAA Docket No. 16-09-03 (Apr. 13, 2010). protecting safety or efficiency or on the basis of promoting land use compatibility.32 • FAA found that a ban on Stage 2 aircraft was unreasonable because “[t]he evidence does not show that there was a noncompatible land use problem in the DNL 60 dB contour that would justify a Stage 2 ban on that threshold.”33 How- ever, the U.S. Court of Appeals reversed FAA’s decision upon finding that FAA’s conclusions were not supported by substantial evidence.34 • FAA found that it was unreasonable and un- justly discriminatory for a GA airport operator to ban Category C and Category D aircraft, even though the airport runway safety areas did not meet then-current FAA standards.35 The U.S. Court of Appeals affirmed this decision.36 • FAA found that it was unreasonable for a GA airport operator to ban all scheduled passenger service.37 The U.S. Court of Appeals affirmed this decision.38 32 Director’s Determination, Aircraft Owners & Pilots Assoc. v. City of Pompano Beach, FAA Docket No. 16-04-01, at 25 (Dec. 15, 2005). 33 Final Agency Decision and Order, In the Matter of Compliance with Fed. Obligations by the Naples Air- port Auth., FAA Docket No. 16-01-15, at 45 (Aug. 25, 2003). 34 City of Naples Airport Auth. v. FAA, 409 F.3d 431, 436 (D.C. Cir. 2005) (The Airport Authority and the City of Naples introduced ample evidence—much of which went unrebutted— demonstrating that the Stage 2 ban was justified. Because the FAA’s conclusion to the contrary is not supported by substantial evidence, the petition for review is granted, the FAA’s order is vacated, and the case is remanded to the FAA.). 35 Final Decision and Agency Order, In the Matter of Santa Monica, FAA Docket No. 16-02-08, at 46 (July 8, 2009) (“It is unreasonable to discriminate against air- craft in Categories C and D that are capable of landing safely at SMO and have the better safety record, and Grant Assurance 22 prohibits such an unjust discrimi- natory measure.”). 36 City of Santa Monica v. FAA, 631 F.3d 550, 559 (D.C. Cir. 2011) (“Applying the Administrative Proce- dure Act’s highly deferential standard of review, we conclude that the FAA did not act arbitrarily or capri- ciously when it concluded that ‘the discriminatory re- striction against operators of Categories C and D air- craft is unjust and not necessary for the safe operation of [SMO].’”) (citation omitted). 37 Final Agency Decision and Order, Centennial Ex- press Airlines v. Arapahoe Cnty. Pub. Airport Auth., FAA Docket Nos. 16-98-05, 13-94-03, 13-94-25 (Feb. 18, 1999). 38 Arapahoe County Pub. Airport Auth. v. FAA, 242 F.3d 1213, 1216 (10th Cir. 2001).

15 • FAA found that a restriction purportedly de- signed to reduce aircraft noise was unjustly dis- criminatory when the airport operator banned certain aircraft but allowed equally noisy or nois- ier aircraft to continue to use the airport.39 • FAA found that it was unreasonable under the circumstances for a GA airport operator to prohibit the establishment of an on-airport drop zone for skydivers.40 • FAA found that it was reasonable for a GA airport operator to preclude use of active runways for the launch of ultralight aircraft by ground ve- hicles, after FAA had advised that such opera- tions were high risk and should occur away from active runways.41 While not a complete list, the consistency of FAA’s decisions in these cases reflects the high standards set by FAA with respect to blanket pro- hibitions on aeronautical activities and aircraft operations. This Guide will examine the legal and practical consequences of these high standards in Section IV. 2. Assurance 23 (Exclusive Rights) Assurance 23 applies primarily to limits on the lease and use of airport property that amount to limits on access. Assurance 23 provides in rele- vant part, “[The airport sponsor] will permit no exclusive right for the use of the airport by any person providing, or intending to provide, aero- nautical services to the public.”42 An exclusive right is “a power, privilege, or other right excluding or debarring another or oth- ers from enjoying or exercising a like power, privi- 39 City & Cnty. of S.F. v. FAA, 942 F.2d 1391, 1396– 98 (9th Cir. 1991). See also Santa Monica Airport Ass’n v. City of Santa Monica, 481 F. Supp. 927 (C.D. Cal. 1979), aff’d, 659 F.2d 100 (9th Cir. 1981). 40 Final Agency Decision and Order, Bodin v. Cnty. of Santa Clara, FAA Docket No. 16-11-06, at 38 (Aug. 12, 2013) (While the Associate Administrator agrees with the County that skydiving is not without its safety concerns, this is true of any aeronautical activity. The FAA’s two separate safety studies show that on-airport skydiving can be safely conducted at E16, and that the County and skydivers wishing to operate on the airport can take specific concrete steps to mitigate potential safety issues.). 41 Director’s Determination, Jones v. Lawrence Cnty. Comm’n, FAA Docket No. 16-11-07 (Sept. 19, 2013). 42 In addition to Assurance 23, a separate statute prohibits any person from having an exclusive right to use an air navigation facility on which federal funds have been spent. 49 U.S.C. § 40103(e) (2014). lege or right.”43 In short, an exclusive right is a monopoly or oligopoly conferred on one or more parties.44 FAA has adopted this judicial definition and added, “An exclusive right can be conferred either by express agreement, by the imposition of unrea- sonable standards or requirements, or by any other means. Such a right conferred on one or more parties, but excluding others from enjoying or exercising a similar right or rights, would be an exclusive right.”45 FAA and reviewing courts have considered the extent to which a restriction on aeronautical ac- tivities or aircraft operations implicates the pro- hibition on exclusive rights. FAA determined that an airport sponsor’s prohibition on Category C and Category D aircraft did not constitute the prohibited grant of an exclusive right because the prohibition did not have an anticompetitive effect on any commercial enterprise at the airport.46 This decision suggests that restrictions on aero- nautical activities are not likely to constitute the impermissible grant of an exclusive right unless challengers can demonstrate that the restriction will have an anticompetitive effect on commercial enterprises. The prohibition on granting exclusive rights may be implicated when a GA airport operator is unwilling or unable to enter into an agreement to permit the use of the airport. There are several important limits on the exclusive rights prohibi- tion. • Permitting a single aeronautical service pro- vider access to the airport will not be considered an exclusive right if, as provided in Assurance 23, both of the following conditions are met: 43 City of Pompano Beach v. FAA, 774 F.2d 1529, 1540 (11th Cir. 1985) (quoting Use of Airports, 40 Op. Att’y Gen. 71, 72 (1942)). 44 City of Pompano, at 1542 (“The type of exclusive right prohibited by section 1349(a) has been described as ‘one of the sort noxious to the anti-trust laws.’”) (cit- ing Aircraft Owners & Pilots Assoc. v. Port Auth. of N.Y., 305 F. Supp. 93, 105 (E.D.N.Y. 1969)). 45 Exclusive Rights at Federally-Obligated Airports, FAA Advisory Circular 150/5190-6, App. 1 (Jan. 4, 2007), http://www.faa.gov/documentLibrary/media/ advisory_circular/150-5190-6/150_5190_6.pdf. 46 Final Agency Decision and Order, In the Matter of Santa Monica, FAA Docket No. 16-02-08, at 46–53 (July 8, 2009), aff’d City of Santa Monica v. FAA, 631 F.3d 550, 551 (D.C. Cir. 2011). But see Bardin v. Cnty. of Sacramento, FAA Docket No. 16-00-11 (Aug. 9, 2001).

16 It would be unreasonably costly, burdensome, or imprac- tical for more than one fixed-based operator to provide such services, and if allowing more than one fixed-based operator to provide such services would require the reduc- tion of space leased pursuant to an existing agreement between such single fixed-based operator and such air- port.47 • The prohibition on granting an exclusive right does not apply to the airport sponsor, which can conduct aeronautical activities on an exclu- sive basis using its own employees and equip- ment.48 This is referred to as the exercise of a “proprietary exclusive right.” The prohibition on exclusive rights has been in place for many decades. Typically, GA airport operators do not state publicly or provide in a lease agreement that an aeronautical service pro- vider has been granted an exclusive right. More likely, a prospective tenant may argue that a GA airport operator’s policies, practices, or conduct have resulted in a denial of access and construc- tively granted an exclusive right to an incumbent commercial aeronautical operator. FAA has made the following determinations in response to allegations that an airport operator has granted an exclusive right: • FAA found, and a reviewing court affirmed, that the imposition of unreasonable standards on a prospective tenant can constitute the impermis- sible grant of an exclusive right.49 • FAA has determined that an unreasonably long delay in negotiating for the lease and use of airport property may constitute the grant of an exclusive right.50 47 49 U.S.C. § 47107(a)(4)(A) (2014); see also Airport Sponsors, AIP Grant Assurance 23 (a)–(b) (Mar. 2014). 48 Final Agency Decision, Jet 1 Center, Inc. v. Naples Airport Auth., FAA Docket No. 16-04-03, at 8 (July 15, 2005). See also Rectrix Aerodrome Ctrs. v. Barnstable Mun. Airport Comm’n, 610 F.3d 8 (1st Cir. 2010). 49 City of Pompano Beach, 774 F.2d at 1542. See also Director’s Determination, Skydance Helicopters, Inc. v. Sedona Oak-Creek Airport Auth., FAA Docket No. 16- 02-02, at 33 (Mar. 7, 2003) (“Providing long-term lease opportunities for one set of commercial operators con- structing hangars while denying the same to another commercial operator desiring to invest in hangar con- struction results in the constructive grant of an exclu- sive right to those operators given the preferential long- term leases.”). 50 City of Pompano Beach, 774 F.2d at 1544; Direc- tor’s Determination, Sun Valley Aviation, Inc. v. Valley Int’l Airport, FAA Docket No. 16-10-02, at 59 (Dec. 11, 2012); Director’s Determination, Corbett v. City of • FAA found that the failure to negotiate in good faith for the lease and use of airport property to conduct commercial aeronautical activities may constitute the grant of an exclusive right.51 • FAA found that an airport operator may pro- tect the legal and financial interests of the air- port, but may not deny access based on an as- sessment of insufficient market demand.52 • Although it is possible to confer an exclusive right on more than a single entity, FAA also has advised that the presence of multiple commercial operators will make it difficult for a complainant to demonstrate that the airport operator granted an exclusive right.53 Modesto, FAA Docket No. 16-08-10 (Apr. 5, 2010); Director’s Determination, Martyn v. Port of Anacortes, FAA Docket No. 16-02-03 (Apr. 14, 2003); Director’s Determination, U.S. Constr. Co. v. City of Pompano Beach, FAA Docket No. 16-00-14, at 19 (Aug. 16, 2001); Director’s Determination, Centennial Express Airlines v. Arapahoe Cnty. Pub. Airport Auth., FAA Docket No. 16-98-05, at 27 (Aug. 21, 1998). 51 Director’s Determination, Sun Valley Aviation, Inc., FAA Docket No. 16-10-02. 52 Director’s Determination, JetAway Aviation v. Montrose County, FAA Docket No. 16-08-01, at 37 (July 2, 2009) (“The County’s proprietary rights allow it to provide a competitive FBO opportunity in a manner that protects the County from legal liability and cost, and that protects its ability to continue as a going con- cern.”); Order 5190.6B, supra note 28, § 9.7(c) (The FAA interprets the willingness of a prospective provider to lease space and invest in facilities as sufficient evidence of a public need for those services. In such instances, the FAA does not accept a sponsor’s claim of insufficient business activity as a valid reason to restrict the prospective provider access to the airport.) Director’s Determination, Sun Valley Aviation, Inc., FAA Docket No. 16-10-02, at 62 (“The theory that FBO competition may decrease one FBO’s bottom line is not relevant to the grant assurances. The fact that an air- port sponsor denied an eligible and qualified entity from engaging in an aeronautical activity is relevant as it demonstrates disregard of [Assurance 23].”). 53 See, e.g., Director’s Determination, Bisti Aviation, Inc. v. City of Farmington, FAA Docket No. 16-07-01, at 13 (Dec. 4, 2007) (Here, the Record reflects that at least two businesses on the Airport have the ability and right to provide fixed-base operator services on the Airport; Complainant and Seven Bar Aviation and [sic] both lease ramp and hangar space on the Airport. Based on Federal law, past Part 16 findings in related cases, and FAA policy and guidance, Respondent has not created a di- rect granting of an exclusive right on the Airport for providing fixed-base operator services.). Director’s Determination, Roadhouse Aviation v. City of Tulsa, FAA Docket No. 16-05-08, at 27 (Dec. 14, 2006) (“[F]ive FBOs operating on the Airport make it

17 F. Deed Restrictions and the Surplus Property Act Although the U.S. Constitution and the Airport Sponsor Assurances provide the principal con- straints on a GA airport operator’s ability to limit access, there is a third constraint in place at sev- eral GA airports: restrictions contained in deeds by which airport property was conveyed by the federal government. Since World War II, the fed- eral government has transferred hundreds of air- fields formerly used for military purposes to local governments for civil use pursuant to the Surplus Property Act of 1944 and subsequent legislative enactments. The deed of transfer includes restric- tions on use that are very similar to Assurance 22 and Assurance 23. Currently, federal law explic- itly requires that airports conveyed by the federal government “be used and maintained for public use and benefit without unreasonable discrimina- tion.”54 Federal law further requires that a right may not be vested in a person, excluding others in the same class from using the airport at which the prop- erty is located–(A) to conduct an aeronautical activity re- quiring the operation of aircraft; or (B) to engage in sell- ing or supplying aircraft, aircraft accessories, equipment, or supplies (except gasoline and oil), or aircraft services necessary to operate aircraft (including maintaining and repairing aircraft, aircraft engines, propellers, and appli- ances).55 There are only a few GA airports that are sub- ject to these types of deed restrictions but not to the Airport Sponsor Assurances. As a result, most challenges to limits on access are presented as alleged violations of the Airport Sponsor Assur- ances. In limited instances, access restrictions have been challenged as violations of deed restric- tions and, in those cases, FAA used the same ba- sic tests as it would in considering claims for vio- lation of the Airport Sponsor Assurances.56 G. Airport Noise and Capacity Act of 1990 and Noise Rules In 1990, Congress significantly altered the law on aircraft noise and limited the power of airport operators to adopt access restrictions. The ANCA has three main elements: 1) the law required that all aircraft weighing more than 75,000 lbs meet Stage 3 noise levels by 2000; 2) the law recognizes somewhat improbable that Respondent has granted an exclusive right to anyone.”). 54 See 49 U.S.C. § 47152(2) (2014). 55 49 U.S.C. § 47152(3). 56 See, e.g., Director’s Determination, Aircraft Own- ers & Pilots Ass’n v. City of Pompano Beach, FAA Docket No. 16-04-01 (Dec. 15, 2005). the right of airport operators to restrict Stage 2 aircraft and imposed procedural requirements prior to adoption; and 3) the law requires satisfac- tion of extensive procedural requirements and FAA approval prior to the implementation of local restrictions on Stage 3 aircraft. The FAA approval criteria incorporate Airport Sponsor Assurance obligations and other requirements under existing federal law.57 ANCA applies to “noise or access restrictions,” which are defined in ANCA’s implementing regu- lations at 14 C.F.R. Part 161 as follows: Restrictions (including but not limited to provisions of or- dinances and leases) affecting access or noise that affect the operations of Stage 2 or Stage 3 aircraft, such as lim- its on the noise generated on either a single-event or cu- mulative basis; a limit, direct or indirect, on the total number of Stage 2 or Stage 3 aircraft operations; a noise budget or noise allocation program that includes Stage 2 or Stage 3 aircraft; a restriction imposing limits on hours of operations; a program of airport-use charges that has the direct or indirect effect of controlling airport noise; and any other limit on Stage 2 or Stage 3 aircraft that has the effect of controlling airport noise. This definition does not include peak-period pricing programs where the objective is to align the number of aircraft operations with airport capacity.58 This definition appears expansive and might be interpreted to cover access restrictions that are motivated by considerations other than noise. However, FAA does not consider safety-based re- strictions to be subject to ANCA and has specifi- cally advised that weight-based restrictions may be considered unreasonable if there is no showing of need to protect pavement life, or if the restric- tion appears motivated by an interest in mitigat- ing noise without first complying with ANCA.59 Only one airport operator has adopted an access restriction using the ANCA process. In 2000, the City of Naples Airport Authority im- plemented a ban on Stage 2 aircraft after complet- ing the study required by ANCA. The Stage 2 ban was challenged on numerous grounds by FAA and airport user groups but was ultimately upheld. In addition to discussing ANCA itself, the cases cited in this Guide concerning the Naples Stage 2 ban are instructive on issues such as preemption, the application of the Airport Sponsor Assurances to noise-based restrictions, and the rights of airport 57 49 U.S.C. §§ 47524(b)–(c), 47534(a) (2014). 58 See 14 C.F.R. § 161.5 (2014). 59 Weight-Based Restrictions at Airports: Proposed Policy, 68 Fed. Reg. 39,176 (FAA July 1, 2003).

18 tenants conveyed through lease agreements with airport operators.60 ANCA’s scope, and its application to GA air- ports, is limited by several factors. First, ANCA applies only to restrictions on aircraft certificated by FAA, under 14 C.F.R. Part 36, as Stage 2 or Stage 3. Many piston-powered aircraft, which con- stitute the majority of aircraft at many GA air- ports, are not stage rated and therefore restric- tions on such aircraft are beyond ANCA’s scope. Although ANCA may not apply to noise-based restrictions on non-stage-rated aircraft, the con- stitutional limits and Airport Sponsor Assurances do apply. Second, in 2012, Congress required that air- craft weighing 75,000 lbs or less meet Stage 3 noise levels by 2016, phasing out the Stage 2 fleet.61 This requirement eliminated the uncer- tainty that had existed since 1990 about the fu- ture of the Stage 2 aircraft excepted from ANCA’s Stage 2 phase out, which were mostly business jets. In light of the required phase out of the re- maining Stage 2 aircraft, it is unlikely that a GA airport operator will pursue a local ban on Stage 2 aircraft in the future. Third, ANCA has effectively eliminated the imposition of new restrictions on Stage 3 aircraft. Very few airport operators have submitted initial applications under ANCA to restrict Stage 3 air- craft, and only one airport operator, the Burbank– Glendale–Pasadena Airport Authority, has sub- mitted a complete application. FAA rejected the application on the basis that the statutory criteria had not been satisfied.62 Most airport operators that considered possible Stage 3 restrictions have determined that the statutory criteria cannot be satisfied and have declined to initiate or aban- doned studies under ANCA and Part 161. There are three additional features of ANCA that have caused some confusion as to its scope, applicability, and relationship to other laws. First, ANCA does not apply retroactively. As a result, 60 See Final Agency Decision and Order, In the Mat- ter of Compliance with Fed. Obligations by the Naples Airport Auth., FAA Docket No. 16-01-15, at 45 (Aug. 25, 2003); see also City of Naples Airport Auth. v. FAA, 409 F.3d 431, 436 (D.C. Cir. 2005). 61 49 U.S.C. § 47534 (2014). 62 As of the date of this publication, the FAA is re- viewing a pending application by the City of Los Angeles. The FAA deemed the City’s initial submission to be incomplete, in part, because the applicant effec- tively failed to specify a unified airport noise study area but included benefits from a larger sleep disturbance area. noise and access limits on Stage 2 and Stage 3 aircraft that were in effect in 1990 are considered grandfathered.63 Advocates for an access restric- tion at an airport often point to restrictions at other airports as evidence that a restriction would be appropriate and permissible, but may fail to realize that such a restriction, if enacted today, would be subject to ANCA’s substantial proce- dural and substantive requirements. Second, ANCA is ambiguous as to whether it applies to airport operators that are not subject to the Airport Sponsor Assurances or passenger fa- cility charge obligations. ANCA does not clearly identify which airport operators are subject to ANCA’s requirements but does provide that non- compliance with ANCA will result in the loss of eligibility for AIP funding or passenger facility charge approval.64 FAA has not formally taken a position on this issue.65 Third, Sponsor Grant Assurance 22 continues to apply to restrictions proposed on Stage 2 air- craft operations, even when the airport operator complies with ANCA’s requirements for adopting that restriction. H. Rights of Airport Users The discussion to this point has focused on the respective rights and balance of power between the federal government and airport operators. Airport users, who may be impacted by the limits on access imposed by airport operators, have rights and responsibilities as well. These include constitutional protections and contractual rights. 1. The Right to Travel The “right to travel” derives principally from the Privileges and Immunities Clause of the U.S. 63 See, e.g., Santa Monica Airport Ass’n v. City of Santa Monica, 659 F.2d 100 (9th Cir. 1981). 64 49 U.S.C. §§ 47524(e), 47526 (2014). 65 See FAA Responses to Questions from Rep. Tim Bishop, East Hampton Airport 1 (Feb. 2012), http://www.quietskiescoalition.org/files/Responses_to_ Rep._Tim_Bishop_re_East_Hampton_Airport_- _2.24.2012.pdf ([U]nless the town wishes to remain eligible to receive future grants of Federal funding, it is not required to comply with the requirements under the Airport Noise and Capacity Act of 1990 (ANCA), as implemented by title 14 C.F.R. part 161, in propos- ing new airport noise and access restrictions. See title 49 United States Code (U.S.C.), 47524(e)). That informal determination turned on unique facts and circumstances, particularly the terms of the 2005 settlement agreement between FAA and the Town, and it is unclear if it would have broader applicability.

19 Constitution.66 The U.S. Supreme Court has found that the right to travel protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.67 The right to travel is not a generalized right to move from one state to another free from any restriction or regulation. As a result, challenges to restrictions on use of airports on the basis of infringement on the right to travel generally have been rejected.68 One court specifically rejected as frivolous the claim that an aircraft weight restric- tion violated the right to travel. Tutor claimed that defendants’ ban on dual-wheel aircraft with a maximum take-off weight in excess of 95,000 pounds denied him his right to travel as guaranteed by the Fourteenth Amendment to the United States Consti- tution. We have previously held, however, that “burdens on a single mode of transportation do not implicate the right to interstate travel.” [citations omitted] Here, Tu- tor’s right to travel was not violated because he was able to use a different private jet to access his vacation home. In addition, Tutor could have flown into a different air- port, flown on a commercial airliner, or used another mode of transportation.69 2. Equal Protection, Due Process, and Dormant Commerce Clause In a very short summary, the Equal Protection Clause prohibits states from denying any person equal protection of the laws.70 This generally pro- hibits a state and its subdivisions from discrimi- nating against similarly situated individuals, 66 U.S. CONST. amend. XIV, § 1 (“No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States….”). See also 49 U.S.C. § 40103(a)(2) (2014) (“A citizen of the United States has a public right of transit through the navigable airspace.”). 67 Saenz v. Roe, 526 U.S. 489, 500 (1999). 68 See, e.g., City of Houston v. FAA, 679 F.2d 1184, 1198 (5th Cir. 1982) (Neither Houston nor American suggests, nor could they, that the perimeter rule operates as a residency requirement to deny persons their constitutional right to travel. At most, their argu- ment reduces to the feeble claim that passengers have a consti- tutional right to the most convenient form of travel. That notion, as any experienced traveler can attest, finds no support whatso- ever in [Shapiro v. Thompson, 394 U.S. 618 (1969)] or in the air- lines’ own schedules.). 69 Tutor-Saliba v. City of Hailey, 452 F.3d 1055, 1062 (9th Cir. 2006). 70 U.S. CONST. amend. XIV, § 1 (“[N]or shall any state…deny to any person within its jurisdiction the equal protection of the laws.”). entities, and classes. In most instances of eco- nomic regulation, however, distinctions among classes will be upheld as long as a rational basis exists for the regulation. For this reason, most challenges to airport access restrictions based on the Equal Protection Clause have failed.71 The Due Process Clause of the Fourteenth Amendment prohibits the states from depriving “any person of life, liberty, or property, without due process of law.”72 Like the Equal Protection Clause, the Due Process Clause typically will be deemed satisfied where the state or local action has a rational basis. Here again, challenges to access limits based on the Due Process Clause typically fail.73 Finally, the Commerce Clause, which author- izes the federal government to regulate interstate commerce, has a “dormant” aspect that prohibits state and local governments from imposing undue burdens on interstate commerce. This too has been used as a basis for challenges to access limits, but it routinely has been rejected, princi- pally because the courts found that local access restrictions did not discriminate against inter- state commerce.74 71 See, e.g., Tutor-Saliba Corp., 452 F.3d 1055; SeaAir NY, Inc. v. City of N.Y., 250 F.3d 183 (2d Cir. 2001); Gustafson v. City of Lake Angelus, 76 F.3d 778 (6th Cir. 1996); Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977 (9th Cir. 1991). But see Santa Monica Airport Ass’n v. City of Santa Monica, 481 F. Supp. 927 (C.D. Cal. 1979) aff’d 659 F.2d 100 (9th Cir. 1981) (finding that a jet ban violated equal protection). 72 U.S. CONST. amend. XIV, § 1. 73 See, e.g., Tutor-Saliba Corp., 452 F.3d 1055; SeaAir NY, Inc., 250 F.3d 183; Gustafson, 76 F.3d 778; Alaska Airlines, Inc., 951 F.2d 977; Condor Corp. v. City of St. Paul, 912 F.2d 215 (8th Cir. 1990); Pirolo v. City of Clearwater, 711 F.2d 1006 (11th Cir. 1983). But see Skydiving Ctr. of Greater Wash. D.C., Inc. v. St. Mary’s Cnty. Airport Comm’n, 823 F. Supp. 1273 (D. Md. 1993). 74 See, e.g., Tutor-Saliba Corp., 452 F.3d at 1062; Nat’l Bus. Aviation Ass’n v. City of Naples Airport Auth., 162 F. Supp. 2d 1343, 1354 (M.D. Fla. 2001); Nat’l Helicopter Corp. of Am. v. City of N.Y., 137 F.3d 81, 92 (2d Cir. 1998); Alaska Airlines, Inc., 951 F.2d at 983–84; Arrow Air, Inc. v. Port Auth. of N.Y. & N.J., 602 F. Supp. 314 (S.D.N.Y. 1985); Nat’l Aviation v. City of Hayward, 418 F. Supp. 417, 427–28 (N.D. Cal. 1976). But see N.Y. Airlines, Inc. v. Dukes Cnty., 623 F. Supp. 1435, 1443 (D. Mass. 1985); United States v. Cnty. of Westchester, 571 F. Supp. 786, 797 (S.D.N.Y. 1983).

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TRB’s Airport Cooperative Research Program (ACRP) Legal Research Digest 23: A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport describes the assurances made by airport sponsors that receive grants from the U.S. Federal Aviation Administration, and how these assurances limit the sponsor from unreasonably restricting access for aeronautical activity at general aviation airports.

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