The airport industry remains dynamic and ever-changing. So too does the legal and regulatory structure governing the operation and development of public use airports in the U.S.

2012 was noteworthy for the passage of the FAA Modernization and Reform Act, but was a typically busy year for the issuance of judicial and administrative decisions; new rules, policies and guidance; and the publication of many fine legal and technical reports on matters of interest to the airport industry.

Important developments in airport litigation included the rejection of a challenge to DOT’s Airline Passenger Bill of Rights, the rejection of a challenge to FAA’s approval of the Capacity Enhancement Project at the Philadelphia International Airport, and a series of state court cases on inverse condemnation for aircraft overflights and height regulation. In addition, FAA issued several opinions under FAR Part 16 that explain the FAA’s interpretation of the AIP Grant Assurances in critical areas such as tenant relations and the regulation of aeronautical activities.

Also in 2012, DOT and FAA took steps to both implement Congressional directives in the FAA Modernization and Reform Act and to move forward with rulemakings and policy updates. Highlights from 2012 included publication of new standards for airport design, draft guidance on wildlife hazards, the 2013–2017 NPIAS, the general aviation airports study, and U.S. EPA’s final rule on airport and aircraft deicing.

As we have in the past, Kaplan Kirsch & Rockwell continues to commend readers of this newsletter to the abundant reports, studies, and articles published by government agencies and private parties. We have included what we consider to be the most noteworthy publications on the regulatory and legal aspects of airports published by the U.S. Government Accountability Office, the Transportation Research Board, and the DOT Office of the Inspector General, as well as several worthy articles by private practitioners.

The content below contains hyperlinks to many of the source documents, with the exception of subscription-based publications. We hope that you find this newsletter useful for your own efforts to stay current in this continually evolving industry.

Litigation

Court Cases

Afoa v. Port of Seattle, No. 85784-9 (Wash. Sup. Ct., Jan. 31, 2013) (court remanded case to trial court to determine whether airport is liable for personal injuries sustained by ground handler’s employee).

70 Limited Partnership v. McCarran International Airport, No. 56448 (Nev. Sup. Ct., Jan. 25, 2013) (court found that local height regulation constituted a per se regulatory taking).

O’Neill v. City of Bloomington, No. 27CV10-8294 (Dist. Ct. Minn., Aug. 31, 2012) (court found aircraft overflights constituted a taking of an avigational easement).

Spirit Airlines, Inc. v. DOT, No. 11-1219 (D.C. Cir., July 24, 2012) (court denied challenge to DOT’s “Enhancing Passenger Protections” rule).

BMI Salvage Corp. v. FAA, No. 11-12583 (11th Cir., July 19, 2012) (unpublished) (court denied petition for review of FAA’s dismissal of FAR Part 16 complaint alleging violations of Grant Assurance 22 (Economic Nondiscrimination) in connection with airport’s treatment of prospective tenant).

Brenner v. New Richmond Regional Airport Commission, Case No. 2010AP342 (Wis. Sup. Ct., July 17, 2012) (court remanded case to trial court to determine whether aircraft overflights constitute inverse condemnation, nuisance or trespass).

Tinicum Township v. DOT, No. 11-1472 (3d Cir., July 6, 2012) (court affirmed FAA Record of Decision for Capacity Enhancement Project at Philadelphia International Airport).

Paskar v. FAA, Case No. 11-2720 (2d Cir., June 12, 2012) (court affirmed, by summary order, FAA decision dismissing City of New York as respondent in FAR Part 16 proceeding, on the basis that the City was not a sponsor, proprietor or operator of LaGuardia Airport).

American Aviation, Inc. et al. v. FAA, No. 10-72772 (9th Cir., Feb. 14, 2012) (unpublished) (court denied petition for review of FAA order granting authority for specified number of sightseeing flights over the Glen Canyon Recreation Area).

Republic Airline, Inc. v. DOT, No. 11-1018 (D.C. Cir., Jan. 6, 2012) (court vacated a DOT order reallocating slot exemptions at the Reagan National Airport).

DOT and FAA Decisions

Director’s Determination, Sun Valley Aviation, Inc. v. Valley International Airport, FAA Docket No. 16-10-02 (Dec. 11, 2012) (finding no violation of Grant Assurance 22 (Economic Nondiscrimination), Grant Assurance 23 (Exclusive Rights) or Grant Assurance 24 (Fee and Rental Structure) after airport took corrective action to address violations in connection with treatment of prospective tenant).

Director’s Determination, Flightline Ground, Inc. v. Non-Flood Protection Asset Management Authority, FAA Docket No. 16-11-01 (Oct. 24, 2012) (finding no violation of any Grant Assurance in connection with airport’s treatment of FBO tenants).

Director’s Determination, Paskar v. Port Authority of New York and New Jersey, FAA Docket No. 16-11-04 (Sept. 27, 2012) (finding no violation of any Grant Assurance in connection with airport’s response to proposed waste transfer station).

Director’s Preliminary Determination, Jones v. Lawrence County Commission, FAA Docket No. 16-11-07 (July 16, 2012) (finding that the airport may be in violation of Grant Assurance 22 and Grant Assurance 23 in connection with regulation of hang gliding activities and directing the airport to take corrective action).

Director’s Determination, Evergreen International Airlines v. Port Authority of New York & New Jersey, FAA Docket No. 16-10-04 (April 2, 2012) (finding no violation of Grant Assurance 22 (Economic Nondiscrimination) or Grant Assurance 23 (Exclusive Rights) in connection with airport’s regulation of aircraft self-servicing).

Declaratory Order, Hawaii Inspection Fee Proceeding, Docket DOT-OST-2010-0243 (Jan. 23, 2012) (finding that a Hawaiian inspection statute is preempted by the Airline Deregulation Act and the Anti-Head Tax Act).

Federal Rules, Orders, and Guidance

Draft Order 5100.38D, Airport Improvement Program Handbook (Jan. 31, 2013).

Final Rule, Safety Enhancements, Certification of Airports, 78 Fed. Reg. 3,311 (Jan. 16, 2013).

Final Rule, Exhaust Emissions Standards for New Aircraft Gas Turbine Engines and Identification Plate for Aircraft Engines, 77 Fed. Reg. 76,842 (Dec. 31, 2012).

Report on the Sustainable Master Plan Pilot Program and Lessons Learned (Dec. 17, 2012).

Program Guidance Letter 13-02, Zero Emissions Airport Vehicles and Infrastructure Pilot Program (Dec. 11, 2012).

Draft Advisory Circular 150/5200-33C, Hazardous Wildlife Attractants on or near Airports (Dec. 7, 2012).

Internal Memorandum, Guidance for Implementation of the Categorical Exclusion in Section 213(c)(1) of the FAA Modernization and Reform Act of 2012 (Dec. 6, 2012).

Draft Advisory Circular 150/5200-XX, Protocol for the Conduct and Review of Wildlife Hazard Site Visits, Wildlife Hazard Assessments, and Wildlife Hazard Management Plans (Nov. 30, 2012).

Draft Advisory Circular 150/5200-32B, Reporting Wildlife Aircraft Strikes (Nov. 30, 2012).

Advisory Circular 150/5300-13A, Airport Design (Sept. 28, 2012).

Advisory Circular 150/5230-4B, Aircraft Fuel Storage, Handling, Training, and Dispensing on Airports (Sept. 28, 2012).

Advisory Circular 150/5220-22B, Engineered Materials Arresting Systems (EMAS) for Aircraft Overruns (Sept. 27, 2012).

Internal Memorandum, Interim Guidance on Land Uses Within a Runway Protection Zone (Sept. 27, 2012).

2013-2017 National Plan of Integrated Airport Systems (NPIAS) Reports (Sept. 27, 2012).

Notice of Proposed Rulemaking, Stage 3 Helicopter Noise Certification Standards, 77 Fed. Reg. 57,524 (Sept. 18, 2012).

Program Guidance Letter 12-08, Implementation of Changes from the FAA Modernization and Reform Act of 2012 (Sept. 14, 2012).

PFC Update 69-12, Implementation of Changes from the FAA Modernization and Reform Act of 2012 (Sept. 14, 2012).

Internal Memorandum, Interim Guidance on Mineral Extraction and Request for Data Update (Aug. 24, 2012).

FAA Order 8000.94, Procedures for Establishing Airport Low-Visibility Operations and Approval of Low-Visibility Operations/Surface Movement Guidance and Control System Operations (Aug. 21, 2012).

Program Guidance Letter 12-09, Eligibility and Justification Requirements for Noise Insulation Projects (Aug. 17, 2012, Rev. Nov. 7, 2012).

Policy Statement, Aviation Environmental and Energy Policy Statement, 77 Fed. Reg. 43,137 (July 23, 2012).

Final Rule, The New York North Shore Helicopter Route, 77 Fed. Reg. 39,991 (July 6, 2012).

Draft Advisory Circular 150/5200-37A, Safety Management Systems for Airports (June 29, 2012).

Draft Change 19 to Advisory Circular 150/5300-13, Airport Design (June 29, 2012) (concerning on-airport parachute landing areas).

FAA Office of Airports Safety Management System (SMS) Desk Reference (June 1, 2012).

Final Draft, Principles for Evaluating Long-Term and Exclusive Agreements in the ACDBE Program (May 21, 2012).

U.S. EPA, Final Rule, Effluent Limitations Guidelines and New Source Performance Standards for the Airport Deicing Category, 77 Fed. Reg. 29,168 (May 16, 2012).

Compliance Guidance Letter 2012-01: FAA Implementation of Public Law 112-95 Section 813, Use of Mineral Revenue at Certain Airports (May 16, 2012).

General Aviation Airports: A National Asset (May 16, 2012).

Notice, Airport Improvement Program (AIP) Grant Assurances, 77 Fed. Reg. 22,376 (April 13, 2012).

Partial Granting of Petition, Policy and Procedures Concerning the Use of Airport Revenue: Petition of the Clark County Department of Aviation to Use a Weight-Based Air Service Incentive Program, 77 Fed. Reg. 21,146 (April 9, 2012).

Request for Comments, Unmanned Aircraft System Test Sites, 77 Fed. Reg. 14,319 (March 9, 2012).

Final Rule, Flightcrew Member Duty and Rest Requirements, 77 Reg. Reg. 330 (Jan. 4, 2012).

U.S. Government Accountability Office

Screening Partnership Program: TSA Should Issue More Guidance to Airports and Monitor Private versus Federal Screener Performance, GAO-13-208 (Dec. 6, 2012).

General Aviation Safety: Additional FAA Efforts Could Help Identify and Mitigate Safety Risks, GAO-13-36 (Oct. 4, 2012).

Unmanned Aircraft Systems: Measuring Progress and Addressing Potential Privacy Concerns Would Facilitate Integration into the National Airspace System, GAO-12-981 (Sept. 14, 2012).

Slot-Controlled Airports: FAA’s Rules Could Be Improved to Enhance Competition and Use of Available Capacity, GAO-12-902 (Sept. 13, 2012).

Aviation Safety: Additional FAA Efforts Could Enhance Safety Risk Management, GAO-12-898 (Sept. 12, 2012).

Airport Noise Grants: FAA Needs to Better Ensure Project Eligibility and Improve Strategic Goal and Performance Measures, GAO-12-890 (Sept. 12, 2012).

Next Generation Air Transportation System: FAA Faces Implementation Challenges, GAO-12-1011T (Sept. 12, 2012).

Unmanned Aircraft Systems: Use in the National Airspace System and the Role of the Department of Homeland Security, GAO-12-889T (July 19, 2012).

General Aviation Security: Weaknesses Exist in TSA’s Process for Ensuring Foreign Flight Students Do Not Pose a Security Threat, GAO-12-875 (July 18, 2012).

Transportation: National Mediation Board Mandates in the FAA Modernization and Reform Act of 2012, GAO-12-835R, (June 27, 2012).

Transportation: Delayed-Baggage Trends and Options for Compensating Passengers, GAO-12-804R (June 14, 2012).

Aviation Security: Actions Needed to Address Challenges and Potential Vulnerabilities Related to Securing Inbound Air Cargo, GAO-12-632 (May 10, 2012).

Checked Baggage Screening: TSA Has Deployed Optimal Systems at the Majority of TSA-Regulated Airports, but Could Strengthen Cost Estimates, GAO-12-266 (April 27, 2012).

Aviation Safety: FAA Is Taking Steps to Improve Data, but Challenges for Managing Safety Risks Remain, GAO-12-660T (April 25, 2012).

Transportation: Key Issues and Management Challenges, GAO-12-581T (March 29, 2012).

Transportation Security Administration: Progress and Challenges Faced in Strengthening Three Key Security Programs, GAO-12-541T (March 26, 2012).

Aviation Safety: FAA Has An Opportunity to Enhance Safety and Improve Oversight of Initial Pilot Training, GAO-12-537T (March 20, 2012).

Air Traffic Control Modernization: Management Challenges Associated with Program Costs and Schedules Could Hinder NextGen Implementation, GAO-12-223 (Feb. 16, 2012).

Airport and Airway Trust Fund: Factors Affecting Revenue Forecast Accuracy and Realizing Future FAA Expenditures, GAO-12-222 (Jan. 23, 2012).

Transportation Research Board, Airport Cooperative Research Program

Legal Research Digest 16, Legal Aspects of Airport Programs: 2012 (Dec. 2012).

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

Legal Research Digest 17, State and Federal Regulations That May Affect Initiatives to Reduce Airports’ GHG Emissions (Dec. 2012).

Report 77, Guidebook for Developing General Aviation Business Plans (Nov. 2012).

Report 74, Application of Enterprise Risk Management at Airports (Sept. 2012).

Legal Research Digest 16, Procurement of Airport Development and Planning Contracts (Sept. 2012).

Legal Research Digest 15, Compilation of State Airport Authorizing Legislation (Aug. 2012).

Synthesis 37, Lessons Learned from Airport Safety Management Systems Pilot Studies (Aug. 2012).

Report 73, Airport-to-Airport Mutual Aid Programs (July 2012).

Synthesis 33, Airport Climate Adaptation and Resilience (June 2012).

Report 66, Considering and Evaluating Airport Privatization (May 2012).

Legal Research Digest 14, Achieving Airport-Compatible Land Uses and Minimizing Hazardous Obstructions in Navigable Airspace (April 2012).

Legal Research Digest 13, An Index and Digest of Decisions: Compilation of Airport Law Resources (March 2012).

Report 65, Guidebook for Airport Irregular Operations (IROPS) Contingency Planning (Feb. 2012).

Report 60, Guidelines for Integrating Alternative Jet Fuel into the Airport Setting (Feb. 2012).

Report 56, Handbook for Considering Practical Greenhouse Gas Emission Reduction Strategies for Airports (Jan. 2012).

DOT, Office of the Inspector General

Contract Towers Continue To Provide Cost-Effective and Safe Air Traffic Services, but Improved Oversight of the Program Is Needed (Nov. 5, 2012).

MWAA’s Weak Policies and Procedures Have Led to Questionable Procurement Practices, Mismanagement, and a Lack of Overall Accountability (Nov. 1, 2012).

Aviation Industry Performance: A Review of the Aviation Industry, 2008 – 2011 (Sept. 24, 2012).

FAA Has Not Effectively Implemented its Wildlife Hazard Mitigation Program (Aug. 22, 2012).

Challenges With Implementing Near-Term NextGen Capabilities at Congested Airports Could Delay Benefits (Aug. 1, 2012).

Articles

T. Devine and C. Alexander, Federal Regulation of Airports: Rethinking the Appropriate Role, TransLaw (Fall 2012).

W. Eric Pilsk, Airport Noise Litigation in the 21st Century: A Survey of Current Issues, 11 Issues in Aviation Law & Policy, No. 3 (Spring 2012).

M. Schoen and M. Tooshi, Confronting the New Frontier in Privacy Rights: Warrantless Unmanned Aerial Surveillance, 25 Air & Space Lawyer, No. 3 (2012) (subscription required).

S. Brice, Ties That Bind: FAA Enforcement of Grant Assurances – The Santa Monica Airport Case, 25 Air & Space Lawyer, No. 1 (2012) (subscription required).

K. Andrus, Beyond Airport Emissions: The European Court of Justice’s Decision May Have Far-Reaching Implications, 24 Air & Space Lawyer, No. 4 (2012) (subscription required).

J. Ellison and M. Pilcher, Advanced Imaging Technology (AIT) Deployment: Legal Challenges and Responses, 24 Air & Space Lawyer, No. 4 (2012) (subscription required).

J. Silversmith, Federal Preemption over Air Carrier Prices, Routes, and Services: Recent Developments, 24 Air & Space Lawyer, No. 3 (2012) (subscription required).

A PDF of this Airport Law Alert is available.