National Academies Press: OpenBook
« Previous: III. LEGAL PRINCIPLES
Page 19
Suggested Citation:"IV. PRACTICAL APPLICATION OF 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.
×
Page 19
Page 20
Suggested Citation:"IV. PRACTICAL APPLICATION OF 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.
×
Page 20
Page 21
Suggested Citation:"IV. PRACTICAL APPLICATION OF 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.
×
Page 21
Page 22
Suggested Citation:"IV. PRACTICAL APPLICATION OF 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.
×
Page 22
Page 23
Suggested Citation:"IV. PRACTICAL APPLICATION OF 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.
×
Page 23
Page 24
Suggested Citation:"IV. PRACTICAL APPLICATION OF 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.
×
Page 24
Page 25
Suggested Citation:"IV. PRACTICAL APPLICATION OF 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.
×
Page 25

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

20 3. Contractual Rights Airport users leasing airport property also enjoy the rights and obligations prescribed by a lease or other agreement. However, since most leases explicitly require compliance with airport rules and regulations, it may be difficult for a les- see to establish that an access restriction violates a lease or unconstitutionally impairs a contract.75 Because these constitutional and contractual protections have not been considered a check on airport operator power to restrict access, airport users often turn to the Airport Sponsor Assur- ances as the basis for challenging a restriction or limit on access. I. Summary of Legal Principles The legal principles examined in this section can be summarized as follows: • FAA has exclusive jurisdiction over the regu- lation of airspace and aircraft. As a result, GA airport operators cannot restrict the movement of aircraft in flight. • The federal government occupies the field of aviation safety. Although airport operators can enact safety-related restrictions affecting aero- nautical activities and aircraft operations, such restrictions are subject to FAA review and a de- termination as to whether a restriction is consis- tent with the Airport Sponsor Assurances. • GA airport operators can enact noise-related access restrictions on aeronautical activities and aircraft operations, subject to the ANCA, con- stitutional protections, and the Airport Sponsor Assurances. Noise-based restrictions must be rea- sonable, nonarbitrary, and not unjustly discrimi- natory. • Local governments other than the airport proprietor cannot regulate aircraft operations for safety or noise, but do retain traditional land use and zoning authority over the siting and expan- sion of airports and surrounding areas. • GA airport operators cannot grant an exclu- sive right to conduct commercial aeronautical ac- tivities and must negotiate in good faith for the lease of suitable areas or space on reasonable terms to those willing and qualified to conduct aeronautical activities or provide commercial aeronautical services. 75 See Cont’l Aviation Servs., Inc. v. City of Naples Airport Auth., 873 So. 2d 567, 569 (Fla. Dist. Ct. App. 2004) (affirming state circuit court grant of summary judgment regarding a challenge to a Stage 2 ban at the Naples Municipal Airport). • The imposition of irrelevant, unreasonable, inappropriate, or unattainable terms and condi- tions; unreasonable delay; or the failure to objec- tively and uniformly apply terms and conditions to all similarly situated on-airport aeronautical service providers may constitute the constructive grant of an exclusive right or constitute unjust economic discrimination. IV. PRACTICAL APPLICATION OF LEGAL PRINCIPLES Airport access issues implicate areas of shared responsibility among airport operators, FAA, air- port users, and often other stakeholders. In gen- eral, restrictions on access to GA airports are ini- tiated by the airport operator and subject to review by FAA, typically in the context of a Part 16 complaint, whether initiated by FAA or brought by an airport user. Airport users may also challenge aspects of a restriction to access in court, typically on constitutional grounds. In addi- tion to the substantive legal standards previously discussed, a practical understanding of how FAA reviews limits on airport access will inform GA airport operators and others of what is involved in seeking to adopt a limit on access and how to ef- fectively resolve disputes over access. A. FAA’s Role FAA serves two primary roles with respect to limits on access to GA airports: 1) safeguarding the federal government’s exclusive jurisdiction over airspace and aviation safety, and 2) ensuring compliance with the Airport Sponsor Assurances. With the exception of noise or access restrictions on Stage 3 aircraft subject to ANCA, FAA does not formally preapprove restrictions on aeronautical activities or aircraft operations. Noise or access restrictions on Stage 2 aircraft, however, are sub- ject to a public notice, comment, and review proc- ess under ANCA. In addition, FAA does not pre- approve leases or other agreements to conduct aeronautical activities.76 Rather, FAA will re- spond to requests for assistance from GA airport operators or complaints from airport users and other interested parties concerning limits on ac- cess. With respect to its review of safety-related restrictions, FAA has stated, In all cases, the FAA is the final arbiter regarding avia- tion safety and will make the determination regarding 76 Order 5190.6B, supra note 28, § 12.3(a) (“The FAA does not review all leases, and there is no requirement for a sponsor to obtain FAA approval before entering into a lease.”).

21 the reasonableness of the sponsor’s proposed measures that restrict, limit, or deny access to the airport. The FAA, not the sponsor, is the authority to approve or dis- approve aeronautical restrictions based on safety and/or efficiency at federally obligated airports.77 In acting as the final arbiter on issues of safety, FAA cautions both GA airport operators and air- port users from attempting to substitute their judgment for FAA’s.78 Moreover, FAA advises that GA airport operators must accept some level of risk in connection with their operation of a GA airport. Operating an airport is not, nor will it ever be, a risk-free endeavor. An airport sponsor accepts the responsibilities and obligations of running an airport for all aeronautical users when it accepts Federal grants. While the Associate Administrator agrees with the County that skydiving is not without its safety concerns, this is true of any aeronautical activity.…In operating an airport and accepting Federal funds, the County has ac- cepted the responsibility for compliance with Federal ob- ligations tied to those funds, as well as the authority of FAA as the final arbiter of aviation safety.79 FAA begins with the presumption that aero- nautical activities are safe.80 From this, FAA 77 Id. § 14.3. 78 Director’s Preliminary Determination, Jones v. Lawrence Cnty. Comm’n, FAA Docket No. 16-11-07, at 23 (July 16, 2012) (In pursuing its mission to provide the safest, most efficient aerospace system in the world, the FAA must balance the needs of various aeronautical users competing for use of the nation’s skies. However, the FAA has no obligation to consider the local needs of nonaeronautical neighbors or local economic concerns.). Director’s Determination, Lawrence Cnty. Comm’n., FAA Docket No. 16-11-07, at 19 (“Typically, the Direc- tor cautions a party against substituting its judgment for the expertise of FAA, as FAA safety determinations take precedence over the views of a party with regard to safety.”); id. at 22 (“The Complainant simply substi- tutes its judgment for the expertise of FAA, and the Director finds that unacceptable.”). 79 Final Agency Decision and Order, Bodin v. County of Santa Clara, FAA Docket No. 16-11-06, at 37–38 (Aug. 12, 2013). 80 Order 5190.6B, supra note 28, § 8.8(a) (“An aero- nautical operator holding an FAA certificate is presumed to be a safe operator….”); id. § 14.6 ([C]ertain operators may already possess a “Certificate of Waiver or Authorization” from Flight Standards to conduct the aeronautical activity the airport is attempting to restrict, such as banner towing. Such a document would allow certain opera- tions to remain in compliance with Part 91, General Operating and Flight Rules. These “waivers” or “authorizations” are de facto safety determinations; their issuance implies that the ac- tivity in question can be safely accommodated provided specified conditions are followed.) determines whether there is some particular situation or circumstance involving the airport or surrounding airspace that would render the aero- nautical activity or aircraft operation to be unsafe or to unduly compromise airport and airspace effi- ciency. For example, FAA determined that safety and efficiency would be compromised to an unac- ceptably high level if banner towing was allowed at a busy commercial service airport.81 FAA looks to GA airport operators to make “reasonable accommodations” in crafting access limits in order to assure that the least restrictive measure possible is adopted. FAA has advised: The purpose of any investigation regarding a safety-based or efficiency-based restriction of an aeronautical use is to determine whether or not the restricted activity can be safely accommodated on less restrictive terms than the terms proposed by the airport sponsor without adversely affecting the efficiency and utility of the airport. If so, the sponsor will need to revise or eliminate the restriction in order to remain in compliance with its grant assurance and federal surplus property obligations. A complete prohibition on all aeronautical operations of one type, such as ultralights, gliders, parachute jumping, balloon and airship operations, acrobatic flying, or banner towing should be approved only if the FAA concludes that such operations cannot be mixed with other traffic with- out an unacceptable impact on safety or the efficiency and utility of the airport.82 FAA takes a similar position with respect to noise-based restrictions. The FAA has encouraged a balanced approach to address noise problems and has discouraged unreasonable airport use restrictions. It is FAA policy that airport use restrictions should be considered only as a measure of last resort when other mitigation measures are inade- quate to satisfactorily address a noise problem and a restriction is the only remaining option that could provide noise relief.83 These policies with respect to safety-related and noise-related restrictions are manifest in the Director’s Determination, Aircraft Owners & Pilots Assoc. v. City of Pompano Beach, FAA Docket No. 16- 04-01, at 11 (Dec. 15, 2005) ([Aeronautical] activities…include stop-and-go operations, in- tersection take-offs, operation of gliders, touch-and-go opera- tions, taxi-back activities, operation of helicopters (rotorcraft) and in some cases, engine run-ups. These activities are consid- ered aeronautical activities and, as such, must generally be ac- commodated on airports developed with federal assistance unless adequate justification acceptable to the FAA indicates the activity should not be accommodated on a particular air- port.). 81 Director's Determination, Florida Aerial Adver. v. St. Petersburg-Clearwater Int'l Airport, FAA Docket No. 16-03-01, at 15–16 (Dec. 18, 2003). 82 Order 5190.6B, supra note 28, § 14.7. 83 Id. § 13.8(e).

22 prior adjudications over access restrictions. In virtually every instance in which an airport op- erator adopted a blanket prohibition on an aero- nautical activity or type of aircraft operation, FAA found that the restriction was preempted or in- consistent with the Airport Sponsor Assurances. In contrast, FAA has shown greater deference to airport operators seeking to impose conditions on the manner in which certain aeronautical activi- ties take place.84 FAA safety determinations can be a source of frustration. In many of the cases cited herein, FAA found that an access restriction was unrea- sonable or unjustly discriminatory because the aeronautical activity could be conducted safely or is not “inherently unsafe.”85 GA airport operators and local governments, in contrast, typically are not focused on whether it is possible to conduct an aeronautical activity safely. Instead, GA airport operators are concerned about whether the risk of an incident or accident causing injury, death, or property damage is sufficiently high to warrant limiting the activity. In many respects, this repre- sents one of the most significant sources of conflict between FAA (on the federal level) and GA airport operators (on the local level), because FAA and GA airport operators view the problem so differ- ently. FAA determinations on whether a GA airport operator is complying with the Airport Sponsor Assurances can be frustrating to a GA airport operator as well. Again, GA airport operators may base a decision to restrict an aeronautical activity or aircraft type on an assessment of risk, a desire to mitigate liability exposure, and an attempt to respond to airport neighbors or pilots. Some GA airport operators may seek to deny an aeronauti- cal service provider the opportunity to lease airport property based upon the determination that there is insufficient demand for a particular product, service, or facility. FAA has stated, however, that it has no obligation to consider the local needs of nonaeronautical neighbors when considering whether an airport operator’s actions comply with the Airport Sponsor Assurances. This statement, however, stands in stark contrast to an 84 See id. §§ 14.4(d), 14.7(b). See also Director’s Determination, Jones v. Lawrence Cnty. Comm’n, FAA Docket No. 16-11-07 (Sept. 19, 2013); Director’s Deter- mination, Johnson v. Yazoo Cnty., FAA Docket No. 16- 04-06 (Feb. 9, 2006). 85 See, e.g., Director’s Determination, Skydive Paris, Inc. v. Henry Cnty., FAA Docket No. 16-05-06, at 18 (Jan. 20, 2006). airport operator’s need to consider those factors for its own local, legal, or other reasons.86 That general position and FAA’s willingness to make an independent assessment of local conditions, such as regarding demand for aeronautical ser- vices, can be frustrating to airport operators, who may feel that FAA is substituting its judgment for that of the airport operator on a “local” issue. Nonetheless, as discussed above, FAA acts as the final arbiter on safety issues and FAA’s authority to overrule an airport operator’s assessment of local conditions has been affirmed. B. Resolution of Disputes over Airport Access There is no single mechanism by which dis- putes over aeronautical activities, aircraft opera- tions, and the use and lease of airport property are resolved. The following is a description of some of the common features of disputes and the procedural mechanisms available to resolve access-related disputes. Disputes may begin when an action is taken by the GA airport operator to limit or restrict access. Triggering events may include the adoption of a rule restricting a certain type of aeronautical activity or aircraft operation, a breakdown in lease negotiations, or the failure to reach an agreement over a prolonged period. Arguably, the key to successful resolution of disputes is to educate all parties prior to the trig- gering event. Although many GA airports have a professional and skilled staff, some smaller GA airports may not have staff with detailed knowl- edge of the Airport Sponsor Assurances or the other subjects covered in this Guide.87 The same or similar problems may exist on the other side of the dispute. Airport users may have insufficient knowledge of the Airport Sponsor Assurances. This may result in overstatements of the requirements of the Assurances in general and Assurance 22 and Assurance 23 in particular. Assurance 22 requires that access to GA airports 86 See Director’s Preliminary Determination, Jones v. Lawrence Cnty. Comm’n., FAA Docket No. 16-11-07, at 23 (“However, the FAA has no obligation to consider the local needs of nonaeronautical neighbors or local eco- nomic concerns.”). 87 Although beyond the scope of this Guide, continu- ing legal education, training, and certification courses and programs are offered by the American Association of Airport Executives, Airports Council International– North America, and others, which provide many oppor- tunities for airport personnel and elected officials to become better informed on the requirements and appli- cation of the Airport Sponsor Assurances.

23 be provided for aeronautical activities, and Assur- ance 23 requires that GA airport operators avoid granting exclusive rights. These requirements are not absolute. For example, airport operators can restrict or condition access, if necessary, for the safe and efficient operation of the airport or to serve civil aviation. Similarly, elected and appointed officials and nearby residents may have an incorrect understanding of what the airport or community can do to address a perceived problem, leading to unrealistic demands for action. FAA recommends that GA airport operators consider- ing whether to restrict access consult with FAA prior to taking final action, in part to assist with the education of interested parties, and obtain the position of FAA on whether the restriction is per- missible.88 At the preliminary stage of a dispute, the par- ties typically will try to negotiate directly over a limit or perceived limit on access. Lawyers may or may not be involved at this stage. Written corre- spondence may be useful in clearly describing the positions of the parties and documenting efforts to resolve the dispute. However, written correspon- dence may escalate negative feelings and emo- tions over the issues at hand and harden the posi- tions of the parties. If the parties are unable to resolve the dispute through these types of informal discussions, the dispute may branch out into many different direc- tions, some of which may be more productive than others. In many instances, the GA airport operator, airport user, or both will turn to FAA, particularly when the parties believe that a limit on access implicates the Airport Sponsor Assurances. Often, parties will engage the FAA Airports District Of- fice (ADO) Manager or a compliance specialist in the ADO or regional office. Complaining parties may specifically request that a review be con- ducted under one of two FAA procedures for addressing disputes regarding the Airport Spon- sor Assurances. 88 Order 5190.6B, supra note 28, § 8.8(a) ([A]n airport sponsor that is contemplating the denial of a proposed on-airport aeronautical activity or access is encouraged to contact the local ADO or regional airports division. Those of- fices will then seek assistance from FAA Flight Standards (FS) and Air Traffic (AT) to assess the reasonableness of the proposed action because of safety and efficiency, and to determine whether unjust discrimination or an exclusive rights violation results from the proposed restrictions.). 1. Informal Complaints Pursuant to 14 C.F.R. Part 13 Section 13.1(a) provides, “Any person who knows of a violation of…the Airport and Airway Improvement Act of 1982…or any rule, regula- tion, or order issued thereunder, should report it to appropriate personnel of any FAA regional or district office.” The reference to “any person” in Section 13.1 means that “standing” is not required to file an informal complaint. Further, even if the complaining party does not refer explicitly to Part 13, FAA may treat the matter as an informal pro- ceeding under Part 13. In practice, FAA will typi- cally share an informal complaint with the GA airport operator and ask for a response, often within a 30-day time frame. FAA’s policy on informal review of alleged vio- lations of the Airport Sponsor Assurances is pro- vided in FAA Order 5190.6B, Airport Compliance Manual, Chapter 5 (Complaint Resolution). The policy will not be restated in its entirety herein; readers are advised to consult Chapter 5 for more information. In general, the policy reflects FAA’s interest in helping the parties resolve the dispute informally. Failing informal resolution, FAA may issue a preliminary determination signed by the ADO manager or regional compliance officer and setting forth his or her findings based on a review of the facts and allegations of the parties. During informal and formal dispute resolution concerning safety-related limits on access, FAA personnel may consult with FAA offices such as Flight Standards or Air Traffic to evaluate a restriction. [W]hen an informal Part 13.1 report or formal Part 16 complaint is filed regarding an access restriction based on safety or efficiency, the FAA Office of the Associate Ad- ministrator for Airport should obtain assistance from the appropriate FAA office, usually Flight Standards for safety issues and Air Traffic for efficiency and utility is- sues. While Flight Standards has jurisdiction for safety determinations, coordination with Air Traffic or other FAA offices might be required in cases where the aero- nautical activity being denied has an impact on the effi- cient use of airspace and the utility of the airport.89 As a practical matter, FAA’s preliminary determination can end a dispute. In many instances, the ADO or regional personnel are al- ready familiar with the airport, the parties, and the dispute leading to the informal complaint. FAA personnel can provide relevant information and advice, including how similar disputes have been resolved at other airports. Often, the advice 89 Id. § 14.5.

24 of FAA personnel is credible, practical, and con- structive. Rather than simply instructing parties on the interpretation and application of the Airport Sponsor Assurances, FAA may look for a compro- mise that allows the parties to obtain their re- spective goals, in whole or in part. FAA sets a high bar for access restrictions that prevent the opportunity to conduct an aeronautical activity or operate a particular type of aircraft. Again, FAA encourages GA airport operators to instead pro- vide a “reasonable accommodation,” such as limi- tations on hours of operation, specific safety pro- cedures, or other measures to protect the safety and efficiency of the airport while accommodating the aeronautical activity.90 This concept of rea- sonable accommodation is integral to the successful resolution of disputes or the avoidance of a dispute altogether. It often will be most useful for GA airport operators to identify and consider a range of alternatives to address a particular issue or concern. While a blanket prohibition may seem to be the most efficient and effective means to ad- dress the issue, a more nuanced approach may avoid a dispute. There may be other individuals in the commu- nity (e.g., professional mediators, retired judges, etc.) who may be called upon to help resolve dis- putes over airport access. Airport leases and other agreements may require mediation or arbitration to resolve alleged defaults. One significant prob- lem that affects the ability of some individuals to help resolve disputes is the highly technical nature of aviation and airports and the complexi- ties of the Airport Sponsor Assurances and other federal obligations. 2. Formal Complaints Pursuant to 14 C.F.R. Part 16 If the informal dispute resolution process is not effective, the parties do not agree with FAA’s pre- liminary determination, or the parties do not choose to take advantage of the Part 13 process, a party who is directly and substantially affected by alleged noncompliance may file a formal com- plaint with FAA. In addition, FAA itself may ini- tiate a Part 16 proceeding against an airport sponsor, a procedure FAA has followed in previ- ous access restriction cases in Naples, Florida, and Santa Monica, California, among others. Complaints for alleged violations of the Airport Sponsor Assurances must be filed in accordance with 14 C.F.R. Part 16. Although Part 16 has 90 Id. § 14.7. many specific requirements and should be con- sulted carefully to determine a litigant’s obliga- tions, the key features of Part 16 can be summa- rized as follows: • FAA’s jurisdiction under Part 16 is limited to consideration of whether an airport sponsor is complying with the Airport Sponsor Assurances and a number of other specified federal laws and obligations.91 Review under Part 16 is not avail- able to adjudicate claims arising under unrelated provisions of federal law or under state law. • Only a person “directly and substantially af- fected by any alleged noncompliance” may file a complaint under Part 16 alleging noncompliance with the Airport Sponsor Assurances.92 Certain other federal obligations, such as the revenue use rules and disadvantaged business enterprise rules, have different standing requirements. Again, FAA may initiate an investigation on its own.93 • A complainant must certify in writing that it made “substantial and reasonable good faith ef- forts to resolve the disputed matter informally prior to filing the complaint.”94 This may involve informal dispute resolution under Part 13 or direct discussions or negotiations with airport personnel or other officials of the entity that owns the airport, which may be sufficient to satisfy this certification requirement. • Part 16 provides for a three-step adjudicative process: 1) an investigation by the Director of the Office of Airport Compliance and Management Analysis, resulting in issuance of a Director’s De- termination; 2) a hearing, in limited circum- stances discussed in the following; and 3) review and issuance of a final decision and order by the FAA Associate Administrator for Airports. • A hearing is available only in the limited cir- cumstance when the Director’s Determination is adverse to the airport sponsor and proposes the issuance of a compliance order. A respondent air- port sponsor receiving such a decision may seek a hearing or appeal to the Associate Administrator for Airports. A complainant receiving an adverse Director’s Determination is not entitled to a hear- ing and instead may appeal to the Associate Ad- ministrator for Airports. • Part 16 contains deadlines for the submission of pleadings by the parties and issuance of the 91 See 14 C.F.R. § 16.1 (2014). 92 Id. § 16.23(a). 93 Id. § 16.101. 94 Id. § 16.21(b).

25 Director’s Determination. By rule, the investiga- tion phase is designed to take 6 months (from the filing of a complaint to issuance of the Director’s Determination). In practice, the investigation phase takes longer, often a year or more. • FAA amended Part 16, effective November 2013. The amended rule includes a new mecha- nism by which a respondent airport operator can file a motion to dismiss or a motion for summary judgment on discrete issues before having to file its substantive response.95 • The final agency decision and order issued by the Associate Administrator for Airports can be appealed to the U.S. Court of Appeals.96 • If the Director makes a finding of noncompli- ance, the Director typically will request that the respondent airport sponsor submit a “corrective action plan.” The plan may be coordinated with the ADO or regional office and, if satisfactory, may end the Part 16 proceeding.97 • FAA publishes its decisions under Part 16 at the following Web site: http://part16.airports. faa.gov/.98 In addition to these key points about the Part 16 process, it is important to understand that FAA’s review under Part 16 is limited to consid- eration of whether the respondent airport sponsor is in compliance with the Airport Sponsor Assur- ances and related federal obligations at the time of the investigation. FAA does not seek to penalize airport sponsors for prior violations of the Airport Sponsor Assurances where the airport sponsor has taken corrective action to remedy the viola- tion, but this occurred prior to the issuance of the Director’s Determination. It is also important to understand that FAA approaches access restriction cases differently than other types of Part 16 cases. The majority of Director’s Determinations and Final Orders arise from complaints filed by airport users, are favor- able to the respondent airport sponsor, and find no violation of an Airport Sponsor Assurance. In cases involving a blanket prohibition on an aero- nautical activity or type of aircraft operation, 95 Id. § 16.26. 96 See 49 U.S.C. § 46110 (2014); 14 C.F.R. § 16.247(a). 97 See 14 C.F.R. § 16.109(f). 98 See also COMPILATION OF DOT AND FAA AIRPORT LEGAL DETERMINATIONS AND OPINION LETTERS THROUGH DECEMBER 2012 (Airport Cooperative Research Pro- gram, Transportation Research Board, Legal Research Digest No. 21, 2013). however, FAA is likely to initiate the complaint itself and find a violation of Airport Sponsor Assurance 22 or other Assurances.99 Airport operators should be aware that adopting a broad restriction on access is likely to invite close scru- tiny by FAA. 3. Judicial Remedies Some parties may pursue judicial remedies in addition to, or as an alternative to, filing a com- plaint under Part 16. These include state court actions alleging breach of contract, federal court actions alleging preemption and/or a constitu- tional deprivation, and various other judicial ac- tions on more novel theories (e.g., takings, anti- trust, Racketeer Influenced and Corrupt Organi- zations Act (RICO), etc.). Highly controversial restrictions on access, such as the Naples Stage 2 ban, were challenged in multiple forums on differ- ent legal theories. Because this Guide is focused on the application of the Airport Sponsor Assur- ances, these cases are not examined in detail. C. Stakeholder Perspectives Positions vary widely about limits on access to GA airports. This Guide has detailed the positions and policies of FAA, primarily because FAA adju- dicates compliance with the Airport Sponsor Assurances, subject to review by the U.S. Court of Appeals. This Guide also has described views of some GA airport operators, users, and neighbors. To better understand both the airport access issues at GA airports and stakeholder perspec- tives on those issues, the authors of this Guide conducted interviews with representatives from the following entities: 1) Aircraft Owners and Pi- lots Association, 2) Airports Council Interna- tional–North America, 3) American Association of Airport Executives, 4) Experimental Aircraft As- sociation, 5) FAA, 6) National Air Transportation Association, 7) National Association of State Avia- tion Officials, 8) National Business Aviation Asso- ciation, 9) Association for Unmanned Vehicle Sys- tems International, 10) Flight School Association of North America; 11) Soaring Society of America, and 12) United States Parachute Association. Each respondent was asked to discuss the top access issues faced by the organization, best prac- 99 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); Final Decision and Agency Order, In the Matter of Santa Monica, FAA Docket No. 16-02-08, at 46 (July 8, 2009). See also City of Naples Airport Auth. v. FAA, 409 F.3d 431, 436 (D.C. Cir. 2005).

26 tices for working to resolve airport access issues, and recommended guidance for resolving conflicts related to airport access. Their responses in- formed the organization, content, and approach to this Guide. Perhaps predictably, the respondents listed issues that most closely identified with their respective organizations. The top airport access issues included residential through-the-fence, sky- diving, airport closures, airport noise, and flight schools. A number of respondents recommended that stakeholders should resolve conflicts related to airport access by distributing FAA guidance ma- terial to airport sponsors and local officials in or- der to facilitate constructive and professional dia- logue. Where this approach is not successful, stakeholders should contact the FAA Airport Dis- trict Office, followed by the Regional Office, and finally FAA headquarters. Each respondent identified a similar list of resources, including Title 14 of the U.S. Code of Federal Regulations, FAA Order 5190.6B, the Airport Compliance Manual (2009), the Airport Sponsor Assurances, FAA Advisory Circular Series 150, Program Guidance Letters, and FAA Director’s Determinations and Final Agency Decisions. D. Best Practices for Resolving Disputes While each situation concerning access at a GA airport will be different and warrant its own approach, the following are offered as a best prac- tices approach to the resolution of access-related disputes: • Get educated. The requirements of the Air- port Sponsor Assurances and federal law are com- plex and reflect a shared responsibility for airport safety and noise and the lease and use of airport property. All parties are at risk of overstating their case, which seldom contributes to the suc- cessful resolution of a dispute. Accordingly, all parties are encouraged to educate themselves about the relevant requirements. Often, this will require consulting original source documents, including laws, regulations, policies, guidance, and case law. This Guide and the sources cited herein will hopefully contribute to the education process. • Respect different perspectives. It may be diffi- cult to remember and respect that parties to a dispute may come to the issue with very different backgrounds and perspectives, in addition to an imbalance in factual and legal information. There is a tendency to minimize or dismiss the views and perspectives of those on the other side of a dispute. Respecting different perspectives is par- ticularly important for GA airport operators, who may hear competing arguments from airport us- ers and the industry groups representing them, airport neighbors, and FAA. In many cases, the GA airport operator has the singular motive of doing what is in the best interests of the airport, which may be different than the interests of indi- vidual stakeholders and reflect an attempt to bal- ance the competing demands of airport stake- holders. It may be useful to acknowledge early in the process that the perspectives of other parties are legitimate and worth consideration or ac- knowledgment. • Clearly identify goals and alternatives. As stressed in this Guide, blanket prohibitions on aeronautical activities and aircraft operations are disfavored by FAA, although they may have a role in limited circumstances. GA airport operators would be wise to carefully consider early in the process the key objectives and the alternatives to achieve those objectives. Although a complicated set of safety procedures, voluntary noise abate- ment measures, and detailed lease terms may be more difficult to design and administer, these may be advantageous in potentially avoiding a dispute and the risk of an adverse decision by FAA on Airport Sponsor Assurance compliance. • Have a meeting. Part 16 requires that the parties engage in good faith efforts to resolve the dispute before filing a complaint. As reflected in many of the Part 16 cases cited herein, those ef- forts sometimes take place over an extended period of time. Plainly, there are more and less helpful ways to resolve disputes informally. Emails and written correspondence may be help- ful in clearly describing the positions of the par- ties and may serve as a record of minor and major points of agreement and disagreement. However, face-to-face meetings early in the process have the potential to promote civility and build consensus. GA airport operators should carefully coordinate such meetings and be aware that airport users, airport neighbors, and others may be particularly sensitive to matters such as who is being asked to attend the meetings and when and where the meetings are to take place. • Get help from FAA. Although FAA does not approve safety-related and noise-related access restrictions (except restrictions on Stage 3 air- craft), FAA encourages GA airport operators to consult with the agency prior to the adoption of restrictions and is available to advise all parties

Next: V. CONCLUSION »
A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport Get This Book
×
 A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport
Buy Paperback | $37.00
MyNAP members save 10% online.
Login or Register to save!
Download Free PDF

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.

READ FREE ONLINE

  1. ×

    Welcome to OpenBook!

    You're looking at OpenBook, NAP.edu's online reading room since 1999. Based on feedback from you, our users, we've made some improvements that make it easier than ever to read thousands of publications on our website.

    Do you want to take a quick tour of the OpenBook's features?

    No Thanks Take a Tour »
  2. ×

    Show this book's table of contents, where you can jump to any chapter by name.

    « Back Next »
  3. ×

    ...or use these buttons to go back to the previous chapter or skip to the next one.

    « Back Next »
  4. ×

    Jump up to the previous page or down to the next one. Also, you can type in a page number and press Enter to go directly to that page in the book.

    « Back Next »
  5. ×

    To search the entire text of this book, type in your search term here and press Enter.

    « Back Next »
  6. ×

    Share a link to this book page on your preferred social network or via email.

    « Back Next »
  7. ×

    View our suggested citation for this chapter.

    « Back Next »
  8. ×

    Ready to take your reading offline? Click here to buy this book in print or download it as a free PDF, if available.

    « Back Next »
Stay Connected!