News & Publications

Airport Law Alert No. 18 – Year in Review

The lack of funding for federal programs had a direct effect on the airport industry in 2013. In early 2013, the FAA declared its intent to close 149 contract towers at airports across the country. More than 40 airports and two trade groups sued the FAA to stop the closure. At the same time, the FAA began to furlough air traffic controllers employed by the FAA, prompting suit by the airline industry. Then, in fall 2013, TSA declared its intent to stop staffing the exit lanes at commercial service airports. This too prompted litigation from airports across the country.

The FAA’s and TSA’s decisions were overturned by acts of Congress. Congress authorized the FAA to make up its funding shortfall through transfers from the Airport Improvement Program, pursuant to the Reducing Flight Delays Act of 2013. In the Bipartisan Budget Act of 2013, Congress provided funding for contract towers for the current fiscal year, and required TSA to continue to staff airport exit lanes.

These events reflect the fragility of funding for airports and aviation and the strength of the airport industry to advocate for rational funding policies. There seems little doubt that similar discussions will continue and that communities will face threats that are equally or more fundamental to the operation and development of airports and the national air transportation system.

Our goal with the Year-In-Review is to highlight these significant events but, just as important, to provide a comprehensive list of the legal and regulatory developments affecting airports. Airport law is dynamic and continues to evolve. We know that it is difficult to keep up with the changes.

The content below provides a list of the cases; FAA rules, policies and guidance; and reports, studies, and articles issued in 2013 that are relevant to airports and airport law.

We hope that you find this resource useful and that there is one or more documents listed here that will help you make a more effective contribution to your airport or the airport industry.

Litigation

Court Decisions

Hazards. Town of Barnstable v. FAA, No. 12-1362 (D.C. Cir. Jan. 22, 2014) (court affirmed FAA determinations of no hazard for planned wind turbines in Nantucket Sound).

Helicopters. Helicopter Ass’n Int., Inc. v. FAA, No. 12-1335 (D.C. Cir. 2013) (court upheld FAA’s authority to issue a rule requiring helicopter pilots to use a route one mile off the north shore of Long Island, New York for the purpose of noise abatement in residential areas and specifically upheld FAA’s use of complaint data as a basis for its decision).

Wildlife Hazards. Paskar v. United States DOT, 714 F.3d 90 (2d Cir. 2013) (court dismissed a challenge to an FAA letter to the City of New York in support of a planned waste transfer station, holding that the letter was not a reviewable final order and that the court consequently lacked jurisdiction to consider the petition for review).

Preemption. American Trucking Ass’n, Inc. v. City of Los Angeles, California, 133 S.Ct. 2096 (2013) (court held that two provisions of the concession agreement for drayage trucks at the Port of Los Angeles are preempted by the Federal Aviation Administration Authorization Act of 1994).

Curfew. No Night Flights Network v. Telluride Regional Airport Authority, Case No. 11CV71 (Dist. Ct., San Miguel County, State of Colorado) (Mar. 2013) (court granted summary judgment for Telluride Regional Airport Authority on plaintiff’s claim that an expansion of operational hours of the Telluride Regional Airport was inconsistent with special use permit).

Preemption. Gilstrap v. United Airlines, Inc., 709 F.3d 995 (9th Cir. 2013) (court held that the Air Carrier Access Act does not fully preempt state law personal injury claims by a disabled passenger against an airline).

Tort Liability. Hartman v. U.S., 923 F.Supp.2d 1287 (W.D. Okla. 2013) (court granted summary judgment for the Oklahoma City Airport Trust and the City of Oklahoma in a wrongful death suit on the basis that the airport’s acts or omissions could not, as a matter of law, be the proximate cause of the wildlife strike and subsequent aircraft accident).

Tort Liability. Metro Aviation, Inc., et al. v. United States, 305 P.3d 832 (Mont. 2013) (court found that Metro Aviation is not entitled to indemnity from the United States for the deaths of two passengers resulting from an aircraft accident).

Pilots. Emory v. United Air Lines, Inc., 720 F.3d 915 (D.C. Cir. 2013) (court dismissed all claims regarding pilots’ challenge to the Fair Treatment for Experienced Pilots Act of 2007).

First Amendment. Spirit Airlines, Inc., et al. v. US DOT, 687 F.3d 403 (D.C. Cir. 2012), cert. denied, 133 S.Ct. 1723 (2013) (Supreme Court denied Spirit Airlines’ writ of certiorari. At issue was whether the DOT Airfare Advertising Rule violated the First Amendment and whether DOT exceeded its statutory mandate to prohibit unfair or deceptive practices).

Airport Design. Greater Orlando Aviation Authority v. FAA, No. 12-15978C (11th Cir., Nov. 12, 2013) (Petitioner filed a “Notice of Voluntary Dismissal with Prejudice” in this suit over the FAA’s Interim Guidance on Runway Protection Zones and Advisory Circular 150/5300-13A, Airport Design).

DOT and FAA Decisions

Director’s Determination. McDonough Properties, L.L.C. v. City of Wetumka, FAA Docket No. 16-12-11 (Oct. 10, 2013) (Director found that Respondent did not violate Grant Assurances in refusing to enter into long-term leases while considering whether to expand or relocate the airport).

Director’s Determination. Truman Arnold Companies d/b/a TAC Air v. Chattanooga Metropolitan Airport Authority, FAA Docket No. 16-11-08 (Oct. 4, 2013) (Director found that Respondent did not violate Grant Assurances in connection with its development of an FBO facility, selection of an FBO to manage and operate the facility, and amendment of the Airport Minimum Standards).

Director’s Determination. Jones v. Lawrence County Commission, FAA Docket No. 16-11-07 (Sept. 19, 2013) (Director found that Respondent did not violate Grant Assurance 22 (Economic Nondiscrimination) or Grant Assurance 23 (Exclusive Rights) in connection with Respondent’s refusal to permit use of active runways for launching ultralight aircraft).

Final Decision. Bodin v. County of Santa Clara, California, FAA Docket No. 16-11-06 (Aug. 12, 2013) (on appeal, Associate Administrator found that airport sponsor did not violate Grant Assurance 5 (Preserving Rights and Powers), but affirmed Director’s conclusion that sponsor violated Grant Assurance 22 (Economic Nondiscrimination), in connection with the sponsor’s refusal to permit an on-airport parachute landing area).

Alaska Airlines Inc. v. Los Angeles World Airports, DOT Docket No. OST-2007-27331 (July 3, 2013) (DOT dismissed, upon motion of all parties, remaining claims involving airline challenge to fees imposed by regulation at Los Angeles International Airport).

Director’s Determination. Northern Air, Inc. v. County of Kent, Michigan, FAA Docket 16-11-10 (Mar. 28, 2013) (Director found that Respondent did not violate Grant Assurances in its consideration and negotiation of a lease with a third FBO).

Pending Cases

City of Santa Monica v. United States of America, et al., No. CV13-08046 (C.D.Cal. filed Oct. 31, 2013) (Plaintiff brought a quiet title action and claims of constitutional deprivations concerning the Santa Monica Airport).

United States v. U.S. Airways Group, Inc., No. 1:13-cv-01236 (D.D.C. filed Aug. 13, 2013) (proposed Final Judgment, Stipulation and Competitive Impact Statement were filed with the United States District Court for the District of Columbia on November 12, 2013, in a suit brought by the Attorney General to enjoin the merger of U.S. Airways Group, Inc. and AMR Corporation).

Fleitman v. FAA, No. 13-1984 (1st Cir. filed Aug. 5, 2013) (three community associations and thirteen individuals challenge FAA’s Finding of No Significant Impact/Record of Decision implementing a new air traffic control Area Navigation (RNAV) standard instrument departure from Runway 33L at Boston Logan International Airport).

City of Mukilteo v. US DOT, No. 13-70385 (9th Cir. filed Jan. 31, 2013) (the Cities of Mukilteo and Edmonds, Washington challenge Snohomish County’s authority to amend its Airport Operating Certificate to develop a commercial airline terminal to accommodate service from Alaska Airlines and Allegiant Airlines).

Love Terminal Partners v. United States, No. 08-536 (Fed. Cl. filed July 23, 2008) (plaintiffs allege that the Wright Amendment Reform Act of 2006 was an unconstitutional taking).

Federal Rules, Orders, and Guidance

Press Release, FAA Selects Unmanned Aircraft Systems Research and Test Sites (Dec. 30, 2013).

Notice of Proposed Clarification of Policy: Policy and Procedures Concerning the Use of Airport Revenue: Proceeds From Taxes on Aviation Fuel, 78 Fed. Reg. 69,789 (Nov. 21, 2013).

Final Rule, Nondiscrimination on the Basis of Disability in Air Travel: Accessibility of Web Sites and Automated Kiosks at U.S. Airports, 78 Fed. Reg. 67,882 (Nov. 12, 2013).

Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap (Nov. 7, 2013).

Notice, National Policy, Expanded Use of Passenger Portable Electronic Devices (Oct. 31, 2013).

Draft AC 150/5370-10G, Standards for Specifying Construction of Airports (Oct. 1, 2013).

Notice of Interim Policy, FAA Review of Solar Energy System Projects on Federally Obligated Airports, 78 Fed. Reg. 63,276 (Oct. 23, 2013).

Standard Operating Procedure, FAA Evaluation of Sponsor’s Construction Safety and Phasing Plans Funded by the AIP or PFC Programs (Oct. 1, 2013).

Standard Operating Procedure, Standard Operating Procedure for FAA Review of Exhibit ‘A’ Airport Property Inventory Maps (Oct. 1, 2013).

Advisory Circular 150/5340-1L, Standards for Airport Markings (Sept. 27, 2013).

Advisory Circular 150/5360-12F, Airport Signing and Graphics (Sept. 26, 2013).

Final Rule, Adoption of Statutory Prohibition on the Operation of Jets Weighing 75,000 Pounds or Less That Are Not Stage 3 Noise Compliant, 78 Fed. Reg. 57,790 (Sept. 20, 2013).

Final Rule, Rules of Practice for Federally-Assisted Airport Enforcement Proceedings, 79 Fed. Reg. 56,135 (Sept. 12, 2013).

Notice, Policy Regarding Airport Rates and Charges (Sept. 10, 2013).

Draft Advisory Circular 150/5335-5C, Standardized Method of Reporting Aircraft Pavement Strength - PCN (Aug. 27, 2013).

Notice; Request For Public Comment, Order 1050.1F Environmental Impact: Policies and Procedure, 78 Fed. Reg. 49,596 (Aug. 14, 2013).

Advisory Circular 150/5300-14C, Design of Aircraft Deicing Facilities (Aug. 7, 2013).

Program Guidance Letter 13-06, Safety Management Systems (Aug. 1, 2013).

Final Policy Statement, Airport Improvement Program (AIP): Policy Regarding Access to Airports From Residential Property, 78 Fed. Reg. 42,419 (July 16, 2013).

FAA Compliance Guidance Letter, FAA Review of Existing and Proposed Residential Through-the-Fence Agreements (July 16, 2013).

Order, Small Community Air Service Development Program, DOT-OST-2013-0120 (June 24, 2013).

Guidance, Principles for Evaluating Long-Term Exclusive Agreements in the ACDBE Program (June 10, 2013).

Advisory Circular 150/5200-32B, Reporting Wildlife Aircraft Strikes (May 31, 2013).

FAA Order 8000.369A, Safety Management System (May 8, 2013).

Notice, Invitation To Comment On Draft FAA Order 5100.38, Airport Improvement Program Handbook, 78 Fed. Reg. 7,476 (Feb. 1, 2013).

Reports, Studies, and Articles

U.S. Government Accountability Office

Fiscal Year 2013 Agreed-Upon Procedures: Excise Tax Distributions to the Airport and Airway Trust Fund and the Highway Trust Fund, GAO-14-162R (Dec. 9, 2013).

Intermodal Transportation: A Variety of Factors Influence Airport-Intercity Passenger Rail Connectivity, GAO-13-691 (Aug. 2, 2013).

Airline Mergers: Issues Raised by the Proposed Merger of American Airlines and US Airways, GAO-13-403T (June 19, 2013).

Aviation Safety: FAA Efforts Have Improved Safety, but Challenges Remain in Key Areas, GAO-13-442T (Apr. 16, 2013).

NextGen Air Transportation System: FAA Has Made Some Progress in Midterm Implementation, but Ongoing Challenges Limit Expected Benefits, GAO-13-264 (Apr. 8, 2013).

National Airspace System: Airport-Centric Development, GAO-13-261 (Mar. 28, 2013).

Unmanned Aircraft Systems: Continued Coordination, Operational Data, and Performance Standards Needed to Guide Research and Development, GAO-13-346T (Feb. 15, 2013).

Passenger Facility Charge: Alternative Methods for Collecting Airport Passenger Facility Charges, GAO-13-262R (Feb. 14, 2013).

Transportation Research Board, Airport Cooperative Research Program

Legal Research Digest 21: Compilation of DOT and FAA Airport Legal Determinations and Opinion Letters Through December 2012 (Sept. 2013).

Legal Research Digest 20: Airport Responsibility for Wildlife Management (Aug. 2013).

Synthesis 43: Environmental Assessment of Air and High-Speed Rail Corridors (Aug. 2013).

Report 89: Guidelines for Airport Sound Insulation Programs (Aug. 2013).

Report 85: Developing and Maintaining Support for Your Airport Capacity Project (July 2013).

Report 90: Impact of Regulatory Compliance Costs on Small Airports (July 2013).

Report 87: Procuring and Managing Professional Services For Airports (June 2013).

Synthesis 42: Integrating Environmental Sustainability into Airport Contracts (June 2013).

Synthesis 45: Model Mutual Aid Agreements for Airports (July 2013).

Legal Research Digest 18: Buy America Requirements for Federally Funded Airports (Mar. 2013).

Legal Research Digest 19: Legal Issues Related to Developing Safety Management Systems and Safety Risk Management at U.S. Airports (Jan. 2013).

DOT, Office of the Inspector General

More Comprehensive Data Are Needed To Better Understand The Nation’s Flight Delays And Their Causes (Dec. 2013).

Management Advisory — Suspended or Debarred Firms Are Listed on State DBE Directories as Eligible for DBE Participation (Sept. 2013).

ARRA Lessons Learned: Opportunities Exist for FAA To Further Improve Its Oversight of Airport Grant Payments (Apr. 2013).

Studies

M. Wittman, MIT Small Community Air Service White Paper No. 4, Public Funding of Airport Incentives: The Efficacy of the Small Community Air Service Development Grant (SCASDG) Program (MIT, Jan. 2014).

M. Wittman and W. Swelbar, MIT Small Community Air Service White Paper No. 3, Evolving Trends of U.S. Domestic Airfares: The Impacts of Competition, Consolidation, and Low-Cost Carriers (MIT, Aug. 2013).

M. Wittman and W. Swelbar, MIT Small Community Air Service White Paper No. 2, Modeling Changes in Connectivity at U.S. Airports: A Small Community Perspective (MIT, June 2013).

M. Wittman and W. Swelbar, MIT Small Community Air Service White Paper No. 1, Trends and Market Forces Shaping Small Community Air Service in the United States (MIT, May 2013).

Articles

J. Silversmith, You Can’t Regulate This: State Regulation of the Private Use of Unmanned Aircraft, 26 Air & Space Lawyer, No. 3 (2013) (subscription required).

G. Murphy and S. Seiden, Regulating Annoyance: FAA’s North Shore Helicopter Route Final Rule, 26 Air & Space Lawyer, No. 2 (2013) (subscription required).

R. Goldberg and M. Grant, Ginsberg v. Northwest: An Opportunity to Bring the Ninth Circuit Into the Fold on ADA Preemption, 26 Air & Space Lawyer, No. 2 (2013) (subscription required).

S. Anand, Hovering on the Horizon: Civilian Unmanned Aircraft, 26 Air & Space Lawyer, No. 1 (2013) (subscription required).

N. Rao, The Promise and Challenges of NextGen, 25 Air & Space Lawyer, 25 Air & Space Lawyer, No. 4 (2013) (subscription required).

PDF of this Airport Law Alert is available.