News & Publications

Semi-annual Airport Law Digest – 2018 Year in Review

 

This Digest is a summary of the important developments in airport law in 2018, including: a list of principal cases decided last year; new FAA rules, policies, and guidance; and reports, studies, and articles of particular interest to airport legal professionals. The most significant change to the airport law landscape in 2018 came with the passage and enactment of the most recent FAA Reauthorization Act. The Reauthorization Act touches elements of airport funding, non-aeronautical development, airport noise, hazardous chemicals in ARFF foams, and other important issues for airport sponsors. With reauthorization legislation in the rear view mirror, sponsors now have longer-term certainty, but airports must wait to see how FAA will implement some of the trickier provisions of the law. There are dozens of new statutory requirements relevant to airports and to FAA regulation of airports – some of which are self-executing, some require new FAA regulations, others contemplate revised agency policies or guidelines, and, finally, some demand studies or reports (often with ambitious time deadlines). For a full summary of the FAA Reauthorization Act, see Kaplan Kirsch & Rockwell’s Airport Law Alert on the legislation, released in October 2018.

Entering 2019, the newly divided Congress and changes to committee chairpersons will affect airportrelated matters, though it is impossible to predict how or what changes might be in store. FAA will finally have a new permanent Associate Administrator for Airports: Kirk Shaffer, who is no stranger to airports (he previously held senior airport management positions) or to FAA management (he previously served in the same position for several years under President George W. Bush). With Mr. Shaffer’s appointment, we can expect changes in other senior FAA Airports Division assignments. As of yet, there is no indication of who may be named to the FAA Administrator post. Other topics that will continue to be hot issues in the new year include PFAS (fire fighting foam), litigation over Metroplexes, and potential TIFIA legislation. These and other issues are discussed in our July 2018 Semi-annual Airport Law Digest and our December 2018 Airport Law Alert.

We hope you find this Digest useful in your efforts to remain current in the always-evolving legal and regulatory framework that governs airports. If you have questions about any of the materials in this Digest, please contact editor Nicholas M. Clabbers or any other Kaplan Kirsch & Rockwell attorney who normally represents you.

L I T I G A T I O N


FEDERAL COURT DECISIONS

NEPAInforming Citizens Against Runway Airport Expansion v. FAA, No. 17-71536, 2018 U.S. App. LEXIS 35416 (unpublished 9th Cir. Dec. 18, 2018) (rejecting NEPA-based challenge to FAA’s decision to approve a runway extension at small airport in Hamilton, MT).

Metroplex/Next Gen.  Vaughn v. FAA, No. 16-1377, 2018 U.S. App. LEXIS 33827 (D.C. Cir. Nov. 30, 2018) (unpublished) (dismissing various NEPA, Clean Air Act, and procedural challenges to FAA’s redesign and implementation of the Southern California Metroplex).

Private Rights of Action.  Randel v. Parkland Homeowners Ass’n, No. 18-cv-00804-MEH, 2018 U.S. Dist. LEXIS 195015 (D. Colo. Nov. 15, 2018) (holding that the Federal Aviation Act contains no private right of action for plaintiffs alleging that HOA failed to file required Form 7480-1 for changes to local sport airpark).

Safety AuthorityGyves v. City of Houston, No. H-18-0891, 2018 U.S. Dist. LEXIS 1285422 (S.D. Tex. Oct. 30, 2018) (finding no due process violations and no liability under § 1983 where pilot pulled a jetway emergency release lever in violation of airport rules and regulations and was subsequently banned from airport premises).

Rates and ChargesStar Marianas Air, Inc. v. Commonwealth Ports Auth., No. 17-CV-122018 U.S. Dist. LEXIS 149507 (D. N. Mar. I. Aug. 30, 2018) (dismissing for lack of subject matter jurisdiction a claim that airport sponsor had breached its use and lease agreement with airline and holding that 49 U.S.C. § 47107 and FAA’s Rates and Charges Policy provides no private right of action).

Sponsor LiabilityAfoa v. Port of Seattle, 421 P.3d 903 (Wash. Jul. 19, 2018) (in case involving injured independent contractor employee, finding that sponsor was not jointly and severally liable for airlines’ portion of damages despite sponsor’s nondelegable duty to maintain a safe workplace).

Crash LiabilityDeutsche Lufthansa AG v. Mass. Port Auth., No. 17-CV-11702-DJC, 2018 U.S. Dist. LEXIS 119580 (D. Mass. Jul. 18, 2018) (where airline alleged claims against an airport sponsor for damage to an aircraft resulting from uncleared snow on the taxiway, granting motion to dismiss negligence per se claim but denying a motion to dismiss under breach of contract theory).

Drone RegulationsTaylor v. FAA, 895 F.3d 56 (D.C. Cir. Jul. 6, 2018) (dismissing petition for review, which challenged FAA’s regulation of small UAS as beyond the agency’s statutory authority). Drones and Privacy. Elec. Privacy Info. Ctr v. FAA, 892 F.3d 1249 (D.C. Cir. Jun. 19, 2018) (dismissing challenge to FAA’s decision not to promulgate privacy-specific UAS regulations because petitioners failed to establish standing).

Airport ClosureNat’l Bus. Aviation Assn. v. Huerta, 737 Fed. Appx. 1 (D.C. Cir. Jun. 12, 2018) (dismissing challenge to FAA settlement agreement with the City of Santa Monica that permits closure of the airport in 2028 because preliminary agreement was not final agency action and thus was not reviewable); see also Scott v. City Council for the City of Santa Monica, No. 17-07329 (C.D. Cal. Dec. 15, 2017) (dismissing complaint alleging that City Council failed to hold a public hearing in violation of California state law before entering into settlement agreement).

Petition for ReviewSkydive Myrtle Beach Inc. v. Horry Cty. Dep’t of Airports, 735 Fed. Appx. 810 (4th Cir. Jun. 5, 2018) (dismissing as untimely a challenge to FAA decision in Part 16 matter where petitioner failed to submit petition within 60 days of service of the agency’s decision).

Air Carrier PermitsAir Line Pilots Ass’n v. Chao, 889 F.3d 785 (D.C. Cir. May 11, 2018) (on the merits, rejecting challenge to Department of Transportation’s issuance of air carrier permit to Norwegian Air because nothing requires the Secretary to deny a permit on public interest grounds alone).

PreemptionBailey v. Rocky Mt. Holdings, LLC, 2018 U.S. App. LEXIS 11969 (11th Cir. May 8, 2018) (holding that the balance billing provision in Florida’s personal injury protection statute, which prohibits medical providers from charging in excess of a fee schedule amount, operates as a state-imposed regulation on air carrier rates and that the Airline Deregulation Act preempts the application of the balance billing provision to air carriers).

Airport RevenueClayton Cty. v. FAA, 887 F.3d 1262 887 F.3d 1262 (11th Cir. Apr. 24, 2018) (dismissing petition for review for lack of jurisdiction where non-sponsor municipality challenged letter setting forth FAA’s interpretation of statute requiring taxes on aviation fuel to be used for airport purposes and the court did not find the FAA letter to constitute a final agency action).

Metroplex/NextGenCitizens Ass’n of Georgetown v. FAA, 886 F.3d 130 (D.C. Cir. Mar. 27, 2018) (dismissing petition for review of FAA’s NextGen flight patterns in DC Metroplex because challenge was filed more than 60 days after issuance of FONSI).

Subject Matter JurisdictionBoneyard Acquisitions, LLC v. Bibb Cty., 2018 U.S. Dist. LEXIS 44956 (N.D. Ala. Mar. 20, 2018) (dismissing complaint for lack of subject matter jurisdiction where plaintiff alleged airport sponsor had extinguished easement in accordance with federal law).

Grant AssurancesSPA Rental, LLC v. Somerset-Pulaski Cty. Airport Bd., 884 F.3d 600 (6th Cir. Mar. 7, 2018) (upholding FAA’s finding of no unjust discrimination where complainant was not similarly situated to other entities).

Labor and EmploymentFrungillo v. Bradford Reg’l Airport Operating, 2018 U.S. Dist. LEXIS 39739 (W.D. Pa. Mar. 12, 2018) (finding that co-defendant municipalities were not “joint employers” with their collectively incorporated airport authority for purposes of plaintiff’s FMLA and ADA claims).

Standing and NEPAKaufmann v. FAA, 2018 U.S. App. LEXIS 1393 (6th Cir. Jan. 22, 2018) (finding that petitioners did not have standing nor a federal cause of action against airport sponsor engaged in tree trimming using solely state funds).

False Claims ActUnited States ex rel. Durkin v. Cty. of San Diego, 2018 U.S. Dist. LEXIS 5550 (S.D. Cal. Jan. 11, 2018) (dismissing complaint alleging airport sponsor made false statements in grant applications because plaintiff had not sufficiently alleged how the statements led to the sponsor securing federal funds or the Defendant’s knowledge of the falsity of the statements).

NoiseBRRAM, Inc. v. FAA, 721 Fed. Appx. 173 (3d Cir. Jan. 9, 2018) (on NEPA appeal brought by airport neighbors, affirming FAA decision to use categorical exclusion to approve amendment to operating specifications allowing new air carrier to use airport).

First AmendmentMcDonnell v. City & Cty. of Denver, 878 F.3d 1247 (10th Cir. Jan. 4, 2018) (overturning district court’s grant of preliminary injunction against airport sponsor and finding that sponsor was not required to grant an exception to its regulations on speech-related activities for exigent circumstances).


PENDING CASES

Judicial ReviewKisor v. Wilkie, No. 16-1929 (U.S. Sup. Ct. cert granted Dec. 10, 2018) (non-airport case implicating possible reconsideration of judicial deference to agency interpretations of its own rules (Auer deference)).

Metroplex/NextGenHoward Cty. v. FAA, No. 18-2360 (4th Cir. filed Nov. 14, 2018) (challenging flight procedures at Baltimore-Washington International Thurgood Marshall Airport).

Revenue DiversionAir Transp. Ass’n. of Am., Inc. v. FAA, Case No. 18-1157 (D.C. Cir. respondent’s brief filed Nov. 13, 2018) (petition for review of Part 16 decision finding no violation of Grant Assurance 25 where airlines alleged that airport sponsor had impermissibly charged them certain utility fees it then paid to the City of Portland).

Metroplex/NextGenMaryland v. FAA, No. 18-1302 (D.C. Cir. filed Nov. 8, 2018) (petition for review of FAA decision denying administrative petition for supplemental environmental assessment concerning DC Metroplex and BWI).

DronesElec. Privacy Info. Ctr v. Drone Advisory Committee, et al., Civ. Action No. 18-833 (D.D.C. motion to dismiss filed Jul. 3, 2018) (complaint alleging that DOT’s Drone Advisory Committee is failing to make meetings open to the public).

Metroplex/NextGenMaryland v. FAA, No. 18-1173 (D.C. Cir. filed Jun. 26, 2018) (petition for review of FAA implementation of new approaches at Washington National Airport).


ADMINISTRATIVE DECISIONS

Rates and ChargesSound Aircraft Servs. v. Town of E. Hampton, FAA Docket No. 16-14-07, Director’s Determination (Jan. 2, 2019) (finding no grant assurance violations where complainant alleged that the Town impermissibly raised its rates and charges and violated FAA’s prohibition against revenue diversion when it raised both landing fees and fuel flowage fees).

Revenue DiversionUnited Airlines v. Port Auth. of N.Y. & N.J., FAA Docket No. 16-14-13, Director’s Determination (Nov. 19, 2018) (finding the Port Authority in violation of its grant assurance obligations regarding the fee methodology in place at Newark Liberty International Airport and its use of airport revenue because the Port failed to provide transparency as to the rate calculations and its own accounting practices).

Skydiving and SafetyKurtz v. City of Casa Grande, FAA Docket No. 16-16- 01, Final Agency Decision (Nov. 19, 2018) (affirming Director’s Determination and finding that sponsor violated Grant Assurances 22 and 23 by improperly prohibiting skydiving because the proposed operations could be safely accommodated with certain mitigation measures).

Labor UnionsOBM Onsite Services-West, Inc., No. 19-RC-144377, 2018 NLRB LEXIS 550 (N.L.R.B. Nov. 14, 2018) (holding that independent baggage handlers at Portland International Airport fell under the jurisdiction of the National Mediation Board and the Railway Labor Act, not the National Labor Relations Act).

Gate AllocationIn re Compliance with Federal Obligations by the City of Dallas, FAA Docket No. 16-15-10 (Notice of Investigation served Aug. 7, 2015, since dismissed without prejudice) (FAA investigation into possible grant assurance violations related to a failure to accommodate air carrier requesting gate space).

StandingDover Development, LLC v. St. Louis Reg’l Airport Auth., FAA Docket No. 16-17-09, Final Agency Decision (May 23, 2018) (affirming Director’s Determination and holding that complainant did not have standing where it was neither an airport tenant nor had any aircraft based there and was only an occasional user of airport facilities). 

Revenue DiversionAir Transport Assn. of Am., Inc. v. Port of Portland, FAA Docket No. 16-16-04, Final Agency Decision (May 18, 2018) (affirming Director’s Determination finding no violation of Grant Assurance 25 where airlines alleged that airport sponsor had impermissibly charged them certain utility fees it then paid to the City of Portland).

Economic DiscriminationPelzer v. Michigan, FAA Docket No. 16-16-05, Director’s Determination (May 16, 2018)  (finding sponsor in violation of Grant Assurance 22 where lease negotiations generally lacked transparency or clarity about requirements to operate on the airport, and where sponsor provided no reasons for prohibition on temporary commercial operations).

Legal Fees and Airport RevenueNat’l Bus. Aviation Assn., Inc. v. Town of E. Hampton, FAA Docket No. 16-15-08, Director’s Determination (Mar. 26, 2018) (finding that attorney’s fees and other costs paid by sponsor to defend use restriction was permissible use of airport revenue).

Exclusive RightsAtlantic Beechcraft Servs., Inc. v. City of Fort Lauderdale, FAA Docket No. 16-17-03, Director’s Determination (Mar. 7, 2018) (finding that no Grant Assurance 22 or 23 violations existed where a subtenant’s lease agreement with a sponsor’s lessee prohibited certain commercial maintenance activities within the leasehold area).

Acquisition of PropertyBoggs v. City of Cleveland, FAA Docket No. 16-16-15, Final Agency Decision (Jan. 26, 2018) (affirming Director’s Decision dismissing complaint alleging Grant Assurance violations where sponsor chose not to acquire private property shown on the Airport Layout Plan).

F E D E R A L   L E G I S L A T I O N

FAA Reauthorization Act of 2018, Pub. Law No. 115-254 (Oct. 5, 2018).

Consolidated Appropriations Act, 2018, Pub. Law No. 115-141 (signed Mar. 23, 2018) (extending FAA authorization through Sept. 30, 2018).

E D E R A L   R U L E S,   O R D E R S,   A N D   G U I D A N C E


THE WHITE HOUSE

Memorandum of Understanding Implementing One Federal Decision Under Executive Order 13807 (eff. Apr. 9, 2018).

Press Release, Building a Stronger America: President Donald J. Trump’s American Infrastructure Initiative (Feb. 12, 2018); see also Legislative Outline for Rebuilding Infrastructure in America (Feb. 2018).


DEPARTMENT OF TRANSPORTATION AND FAA ORDERS, POLICIES, AND ADVISORY CIRCULARS

Advisory Circular No. 150/5370-10H, Standard Specifications for Construction of Airports (Dec. 21, 2018).

Draft Order 5090.5, Formulation of the NPIAS-ACIP (comments due by Feb. 15, 2019).

Standard Operating Procedure 11.00, Consultant Fee Analysis (Oct. 1, 2018).

Extension to Order, Operating Limitations at John F. Kennedy International Airport, 83 Fed. Reg. 46,865 (Sept. 19, 2018).

Response to Part 23 Issues/Recommendations Submitted by ACI-NA (Sept. 10, 2018).

Advisory Circular No. 150/5395-1B, Seaplane Bases (Aug. 31, 2018).

Advisory Circular No. 150/5200-38, Protocol for the Conduct and Review of Wildlife Hazard Site Visits, Wildlife Hazard Assessments, and Wildlife Hazard Management Plans (Aug. 20, 2018).

Advisory Circular No. 150/5360-13A, Airport Terminal Planning (Jul. 13, 2018).

Supplemental Guidance on the Airport Improvement Program (AIP) for Fiscal Years 2018-2020, FR Doc. 2018-14675 (Jul. 9, 2018).

Contract Provision Guidelines for Obligated Sponsors and Airport Improvement Program Projects (updated Jun. 19, 2018).

Draft Advisory Circular No. 150/5200-36B, Qualifications for Wildlife Biologist Conducting Wildlife Hazard Assessments and Training Curriculums for Airport Personnel Involved in Controlling Wildlife Hazards on Airports (Jun. 5, 2018).

Proposed Policy, Policy on the Temporary Closure of Airports for Nonaeronautical Purposes, 83 Fed. Reg. 24,438 (May 29, 2018).

Notification of Procedures, Notification to UAS Operators Proposing To Engage in Air Transportation, 83 Fed. Reg. 18,734 (Apr. 30, 2018).

Guidance Document, Compliance with Requirements for Timely Processing of [DBE and ACDBE] Certification Applications (Apr. 29, 2018).

Draft Advisory Circular No. 150/5345-43J, Specification for Obstruction Lighting Equipment (Mar. 21, 2018).

Draft Advisory Circular No. 150/5100-13C, Development of State Aviation Standards for Construction at Non-primary Public-use Airports and Use of State Highway Material Specifications for Individual Projects (Mar. 2, 2018).

Draft Advisory Circular No. 150/5345-54C, Specification for L-884, Power and Control Unit for Land and Hold Short Lighting Systems (Feb. 6, 2018).

Draft Advisory Circular No. 150/5345-26E, FAA Specification for L-823 Plug and Receptacle, Cable Connectors (Feb. 6, 2018).

Advisory Circular No. 150/5340-30J, Design and Installation Details for Airport Visual Aids (Feb. 2, 2018).


INTERNAL REVENUE SERVICE

Private Letter Ruling No. 201847001 (Nov. 23, 2018) (tax exempt bond compliance guidance).

R E P O R T S,   S T U D I E S,   A R T I C L E S,   A N D   O T H E R   P U B L I C A T I O N S


U.S. DEPARTMENT OF TRANSPORTATION

Office of Inspector General, Report No. AV2019005, Opportunities Exist for FAA to Strengthen Its Review and Oversight Process for Unmanned Aircraft System Waivers (Nov. 7, 2018).

Office of Inspector General, Report No. AV2018041, FAA Needs to More Accurately Account for Airport Sponsors’ Grandfathered Payments (Apr. 17, 2018).

Office of Inspector General, Report No. AV2018030, FAA Needs To Strengthen Its Management Controls Over the Use and Oversight of NextGen Developmental Funding (Mar. 6, 2018).


U.S. GOVERNMENT ACCOUNTABILITY OFFICE

Report No. 19-238R, Airport Funding: Alternative Methods for Collecting Airports’ Passenger Facility Charges and Implementation Factors to Consider (Dec. 20, 2018).

Report No. 18-110, Small Unmanned Aircraft Systems: FAA Should Improve Its Management of Safety Risks (May 2018).

Report No. 18-236, Aviation Security: TSA Uses Current Assumptions and Airport-Specific Data for Its Staffing Process and Monitors Passenger Wait Times Using Daily Operations Data (Feb. 2018).


CONGRESSIONAL RESEARCH SERVICE

Report No. R45404, Supersonic Passenger Flights (Nov. 14, 2018).


TRANSPORTATION RESEARCH BOARD, AIRPORT COOPERATIVE RESEARCH PROGRAM

Reports

Report 193:  Strategies for Airports to Reduce Local Stormwater Utility Fees (Dec. 2018).

Report 188:  Using Existing Airport Management Systems to Manage Climate Risk (Dec. 2018).

Report 190:  Common Performance Metrics for Airport Infrastructure and Operational Planning (Nov. 2018).

Report 187:  Transportation Emergency Response Application (TERA) Support Materials for Airport EOC Exercises (Nov. 2018).

Report 191:  A Primer to Prepare for the Connected Airport and the Internet of Things (Oct. 2018).

Report 189:  Design Considerations for Airport EOCs (Oct. 2018).

Report 186:  Guidebook on Building Airport Workforce Capacity (Sept. 2018).

Report 185:  Airport Air Quality Management 101 (Jul. 2018).

Report 184:  Executive Summary for the Guidebook on Understanding FAA Grant Assurance Obligations (May 2018) (individual volumes listed in Web-Only Documents).

Report 183:  User Guides for Noise Modeling of Commercial Space Operations – RUMBLE and PCBoom (Apr. 2018).

Report 182:  Guidance for Planning, Design, and Operations of Airport Communications Centers (Jan. 2018).

Synthesis Reports

Synthesis 93:  Sustainability’s Role in Enhancing Airport Capacity (Oct. 2018).

Synthesis 92:  Airport Waste Management and Recycling Practices (Sept. 2018).

Synthesis 91:  Microgrids and Their Application for Airports and Public Transit (Aug. 2018) (joint report with Transit Cooperative Research Program).

Synthesis 90:  Incorporating ADA and Functional Needs in Emergency Exercises (Jul. 2018).

Synthesis 89:  Clean Vehicles, Fuels, and Practices for Airport Private Ground Transportation Providers (Jul. 2018).

Synthesis 87:  Airport Participation in Oil and Gas Development (Apr. 2018).

Synthesis 86:  Airport Operator Options for Delivery of FBO Services (Feb. 2018).

Synthesis 88:  Airport Community, Water Quality Events, and the Aircraft Drinking Water Rule (Jan. 2018).

Web-Only Documents

Web-Only Document 36:  Enhanced AEDT Modeling of Aircraft Arrival and Departure Profiles, Volume 1: Guidance (Sept. 2018).

Web-Only Document 36:  Enhanced AEDT Modeling of Aircraft Arrival and Departure Profiles, Volume 2: Research Report (Sept. 2018). 

Web-Only Document 44:  Understanding FAA Grant Assurance Obligations Volume 1: Guidebook (May 2018).

Web-Only Document 44:  Understanding FAA Grant Assurance Obligations Volume 2: Technical Appendices (May 2018).

Web-Only Document 44:  Understanding FAA Grant Assurance Obligations Volume 3: Research Report (May 2018).

Web-Only Document 44:  Understanding FAA Grant Assurance Obligations Volume 4: Summary of AIP Grant Assurance Requirements (May 2018).

Web-Only Document 35:  State of the Industry Report on Air Quality Emissions from Sustainable Alternative Jet Fuels (Apr. 2018).

Web-Only Document 33:  Commercial Space Operations Noise and Sonic Book Modeling and Analysis (Apr. 2018).

O T H E R   P U B L I C A T I O N S

Airports Council International – Europe, Addressing the Future of Aviation Noise (Dec. 4, 2018).

National Academies of Sciences, Engineering, and Medicine, Assessing the Risks of Integrating Unmanned Aircraft Systems into the National Airspace System (Jun. 2018).

 

A PDF of this Semi-annual Airport Law Digest is available.