Kaplan Kirsch is honored to have our construction practice named among the 2024 Law360 Practice Group of the Year. The annual awards select winners for their “landmark matters” and “general excellence.”

The Firm’s construction group offers deep experience to clients over a wide variety of construction-related matters. Our work often involves drafting and negotiating contracts for construction, demolition and materials management, construction management, architectural and engineering consulting services and construction-related access agreements, as well as compliance with federal and state contracting and procurement requirements. We also advise on construction-related claims.

The National Environmental Policy Act (NEPA) recognizes categories of actions, known as categorical exclusions (CATEXs), that typically do not have a significant effect on the human environment, and therefore may be examined under the lowest level of environmental review.  In Section 788 of the FAA Reauthorization Act of 2024, Congress created two new CATEXs for airport projects.  Section 788(a) applies to projects that receive limited federal financial assistance.  Section 788(b) applies to certain emergency repairs.

In late December 2024, FAA released guidance on implementation of Section 788(a).  The guidance does not address the Section 788(b) CATEX, which is applicable to emergencies.

The CATEX for limited federal financial assistance applies to “an action by FAA to approve, permit, finance, or otherwise authorize any airport project” that either: (1) receives less than $6 million of federal funds or passenger facility charges (PFCs); or (2) has a total estimated cost of not more than $35 million and federal funds comprise less than 15% of the total project cost.  It is important to note that the first clause applies to both federal funds and PFCs, but the second clause applies only to federal funds.   

In its guidance, FAA makes the following conclusions regarding applicability of the new CATEX:

• FAA will apply the CATEX before it is formally included in FAA’s Order 1050.1 (Environmental Impacts: Policies and Procedures).  However, until the new CATEX is formally incorporated into that Order, FAA will first attempt to apply any available CATEXs currently contained in the Order, and will only evaluate the applicability of the new CATEX if no other CATEX applies.
• FAA takes the position that for the new CATEX to apply, the proposed action must receive at least some funding under Title 49 of the U.S. Code or be at least partially funded with PFCs.  This interpretation suggests that FAA will not allow use of the new CATEX for a project that is paid for entirely with non-federal funds but is otherwise subject to FAA approval (e.g., as part of an ALP change).
• The FAA’s position is that once the federal funding and/or PFC funding requirement is met, all federal funding, regardless of the source, needs to be accounted for in calculating whether the dollar value thresholds are met.  PFCs would be counted for purposes of the $6 million threshold under Section 788(a)(1), but not the 15% threshold under Section 788(a)(2).
• This CATEX is still subject to the standard “extraordinary circumstances” analysis requirement – in other words, the CATEX does not apply if there are factors or circumstances that indicate that the project may have a significant effect on the environment.
• Airport sponsors should pay close attention to funding details.  Any changes that occur that raise the level of federal funding or total project cost beyond the thresholds will trigger re-evaluation of the NEPA analysis and FAA may require additional NEPA documentation.

The CATEX under Section 788(a) is atypical because it is based on the level of federal financial investment rather than on the level of environmental impacts.  While there is no conclusive evidence of specific Congressional intent, it is likely that Congress wanted to provide sponsors with an additional catch-all CATEX to streamline environmental review for smaller projects with limited federal financial engagement.  The FAA’s position that a project must receive some federal funds in order for the new CATEX to apply appears to undercut the value of the new CATEX for projects that receive zero federal funds.

For additional questions on the new guidance or other airport NEPA issues, please contact Katie van Heuven, Peter Kirsch, or Nick Clabbers.

As you have no doubt heard, Spirit Airlines, Inc. filed for bankruptcy this morning in the U.S. Bankruptcy Court for the Southern District of New York under Chapter 11.  The filing is designed to implement a restructuring support agreement supported by a supermajority of Spirit’s investors and is intended to allow Spirit to emerge from bankruptcy as a financially healthy business entity.  Spirit expects to continue operating in the ordinary course of business throughout the bankruptcy proceeding.   Behind the scenes, however, it is important for airport sponsors to be aware of several things:

• Today, November 18, 2024, (the “Petition Date”) is a critically important date.  It sets a demarcation between the “old” airline (now called the “Debtor” or the “Debtor in Possession”) and the airline operating under bankruptcy protection.  For airport sponsors’ accounting teams, this means that a clear line needs to be drawn between amounts owed by Spirit prior to the Petition Date and those amounts which come due post-Petition.
• Spirit’s filing triggers “automatic stay” protection under federal bankruptcy law.  That means that it is generally unlawful for an airport sponsor to make any effort to collect a debt owed by Spirit prior to the Petition Date.  Airport sponsors’ staff should be immediately instructed to discontinue any attempts at collection without seeking specific legal advice. 
• Federal law contains special protections for Passenger Facility Charges in bankruptcy proceedings.  It is important to review the payment status of any PFCs collected by Spirit.  If they are past due, calculate what is needed to catch up.  Such arrears may need to be addressed in short order in the bankruptcy case, in response to Spirit’s initial filings.
• While Spirit’s operations may be “business as usual” at first, Spirit may ultimately seek to shed unproductive obligations through the bankruptcy process, among which may be agreements with airports.  Airport sponsors should immediately collect all agreements with Spirit and think through any operational implications were those agreements to be rejected.
• While it may be some time before we understand whether and how much of Spirit’s “pre-Petition” debt will be satisfied, the Bankruptcy Code requires that Spirit remain current as to post-Petition amounts that become due.  Should Spirit fall behind on post-Petition charges, it is essential that an airport sponsor quickly alert the bankruptcy court through counsel.  Accounting staff should closely monitor payments from Spirit moving forward. 

Kaplan Kirsch is reviewing the so-called “First Day Motions” filed in the proceeding, which set the initial rules for the proceeding and may have additional impacts on the airports where Spirit operates.  It is important that airports at which Spirit operates move quickly to ensure their interests are protected throughout the proceeding, and particularly in these early stages where deadlines come fast, and the implications can be significant. 

As with the rental car bankruptcies during the early days of the COVID-19 pandemic, Kaplan Kirsch anticipates that several of our airport clients will ask that we assist them in creating a consortium of airports to broadly represent the interests of the airport industry throughout this proceeding.  Consortia allow the costs of engaging bankruptcy counsel to be shared among multiple clients, and generally afford airports more leverage in bankruptcy proceedings.  If you are interested in receiving more information about the Spirit bankruptcy or about a potential consortium, please contact Eric Smith, Kirsten Crawford, Adam Gerchick, or any Kaplan Kirsch attorney with whom you regularly work. 

In a sweeping decision issued yesterday in Marin Audubon Society v. Federal Aviation Administration, the U.S. Court of Appeals for the D.C. Circuit ruled that the “[Council on Environmental Quality (CEQ)] regulations, which purport to govern how all federal agencies must comply with the National Environmental Policy Act, are ultra vires” – meaning that the regulations were enacted in excess of legal authority and are accordingly invalid.  The Court’s opinion creates considerable uncertainty for project proponents and NEPA practitioners as to what procedures and regulations apply to ongoing or recently completed NEPA reviews.

Petitioners in the case argued that the Federal Aviation Administration (FAA) and the National Park Service (NPS) violated the National Environmental Policy Act (NEPA) by not preparing an environmental assessment or environmental impact statement to support their issuance of an Air Tour Management Plan governing tour flights over four national park units near San Francisco, California.  In defending their decision, the two agencies relied on CEQ’s NEPA regulations as justification for using a categorical exclusion providing that “changes or amendments to an approved action when such changes would cause no or only minimal environmental impacts” do not require the preparation of a more robust environmental decision document under NEPA. 

While none of the parties questioned the validity of CEQ’s regulations in their arguments, the Court nevertheless decided to address the issue.  In a divided opinion, the Court noted that CEQ’s rulemaking authority is not grounded in any statute adopted by Congress, but rather in an Executive Order of the President.  Because “[n]o statutory language states or suggests that Congress empowered CEQ to issue rules binding on other agencies, i.e., to act as a regulatory agency rather than as an advisory agency,” the majority concluded that CEQ’s regulations do not have the force and effect of law.  The effect is dramatic because, as the court itself acknowledged, the CEQ regulations have been used as the foundation for the administration of NEPA for over four decades, based on the essentially undisputed assumption that the CEQ regulations were binding.

While the full impact of this decision is not yet clear, several initial conclusions can be made:

• NEPA, as set forth in statute (42 U.S.C. § 4331, et seq.), is still in full effect, and federal agencies must still conduct appropriate environmental reviews for federal actions that may impact the environment.
• Agencies can no longer rely on CEQ’s regulations to demonstrate compliance with NEPA; likewise, individuals or organizations can no longer rely on CEQ’s regulations to challenge agency decisions. 
• The Court’s opinion that CEQ is strictly an advisory agency does not apply to other federal agencies with delegated rulemaking authority.  In fact, the Court expressly clarified that NEPA requires “all federal agencies” to develop procedures implementing NEPA.  Nevertheless, while the Court’s opinion does not invalidate such agencies’ guidance, procedures, and regulations, agencies must now consider whether those measures were properly adopted pursuant to their own respective authority, rather than the mere adoption of CEQ’s regulations.   
• Interested stakeholders will want to keep an eye on the possibility of further proceedings in the D.C. Circuit.

For additional questions, please contact Katie van Heuven, Nate Hunt, Matt Adams, or any other Kaplan Kirsch attorney with whom you normally work. 

Kaplan Kirsch is pleased to welcome Kirsten Crawford as a partner in the firm’s real estate, land use, and zoning practice. Kirsten brings with her an impressive background as a seasoned real estate and land use attorney, specializing in complex land use entitlements and the nuances of development approval processes. Her experience spans both private sector representation and municipal roles, where she has effectively guided high-profile stakeholders through significant public-private partnerships and sophisticated mixed-use developments.

Prior to joining the firm, Kirsten served as Principal Attorney at Crawford Law LLC, where she advised on a range of real estate and regulatory matters. She also brings a wealth of experience and expertise in navigating complex public policy issues, developing legislation, and crafting numerous ballot measures. Kirsten has invaluable public sector experience from her time as Town Attorney for Breckenridge, CO, where she handled land use and development matters central to balancing the needs of the local workforce with the world class resort economy. Additionally, Kirsten held prominent roles with the City and County of Denver, first as Legislative Counsel for the Denver City Council and later as a Staff Attorney for Denver International Airport. In these roles, she was instrumental in crafting impactful legislation, managing municipal land use policies, and addressing legal challenges in one of the nation’s busiest airports.

Kirsten’s commitment to responsible development and her understanding of both private and public-sector needs make her a valuable addition to our team. Her expertise in real estate law and skill in balancing diverse interests equip her to offer practical guidance and creative solutions for clients.

The Department of Transportation’s modal agencies took three significant regulatory actions affecting passenger rail recently.  First, the Federal Railroad Administration (FRA) issued two notices of proposed rulemaking (NPRMs) in two days proposing amendments to its positive train control (PTC) regulations and rules of practice governing waivers.  The PTC NPRM includes three amendments relating to the operation of non-revenue passenger equipment, temporary outages of PTC systems, and initialization failures.  The NPRM relating to waiver procedures introduces greater specificity into the waiver standard and new requirements for the contents and processing of waiver petitions.  Separately, the Federal Transit Administration (FTA) issued a Final Rule enacting new regulations governing rail transit roadway worker protection (RWP), including a requirement that agencies adopt an RWP program and use redundant protections. 

Positive Train Control Updates

FRA issued an NPRM on October 28, 2024 proposing three significant amendments to its PTC.  The NPRM, if adopted, would represent the first amendment to FRA’s PTC regulations since 2021.

First, the NPRM proposes to add a new entry to the list of exceptions to the general rule that all trains operating on PTC-equipped track be controlled by a PTC-equipped locomotive.  The new exception would permit non-revenue passenger equipment to operate in PTC territory to a maintenance facility or yard in order to repair or exchange a PTC system.  The regulation lays out certain conditions that would need to be met for the operation to be permissible, such as a maximum 49 miles-per-hour speed and an absolute block in front of the equipment.  FRA would also be empowered to approve alternative criteria in a PTC Safety Plan or Request for Amendment (RFA) if the alternatives provided at least as much safety as the default criteria.  FRA states that this provision will allow passenger railroads to avoid using rescue trains to move trains with non-operative PTC equipment.  According to FRA, commuter railroads have expressed support for this exception, notwithstanding that it will constrain operations by preventing the provision of revenue passenger service while the movement is underway.

Second, the NPRM proposes to add a regulation clarifying that the RFA process applies where a railroad seeks to temporarily disable its PTC system and continue operations.  A railroad would need to use the RFA process whenever an onboard PTC apparatus or subsystem, wayside subsystem, communications subsystem, or back office subsystem is “disabled” (FRA states it will interpret “disabled” broadly).  The RFA would need to contain certain information, including the technical necessity of the outage, an explanation of how the outage is in the public interest and consistent with railroad safety, specifications about the outage, additional safety measures that will apply during the outage, and an analysis showing that the duration of the outage is the minimum time necessary to complete work, test the PTC system, and place the PTC system back into service.

Third, the NPRM proposes to replace expired regulations governing failures for PTC Systems to initialize.  Under the amended regulations, for the first 24 hours after a PTC system fails to initialize trains would be allowed to proceed under the rules governing en-route failures.  FRA reasons that railroads are accustomed to complying with these restrictions, and reports that several passenger and freight railroads recommended this approach.  After 24 hours, certain of those restrictions would continue to apply, but the standard speed restrictions would be replaced with a stricter cap of 20 miles-per-hour (known as “restricted speed”).  FRA would reserve the right to impose additional restrictions.  This section is intended to apply only to issues affecting multiple trains, rather than failures on a single train. 

Comments are due December 27, 2024, and may be filed on regulations.gov in Docket No. FRA-2023-0064.  The NPRM is available at 89 Fed. Reg. 85462. 

Waiver Rules of Practice

FRA issued an NPRM on October 29, 2024 proposing to amend its rules of practice governing waivers of its safety regulations. 

FRA is statutorily permitted to waive or suspend any of its safety regulations if it finds that doing so is “in the public interest and consistent with railroad safety.”  49 U.S.C. § 20103(d).  In the NPRM, FRA is proposing to define the terms “in the public interest” and “consistent with railroad safety” in its regulations.  The former term would be defined to mean that “the proposed request demonstrates positive factors including, but not limited to, empowering workers, ensuring equity, protecting the environment, creating robust infrastructure, enabling adaptability and resiliency, bringing legacy systems up to current standards, allowing for experimentation consistent with railroad safety, providing opportunities to collaborate, ensuring interoperability, integrating across transportation modes, and the well-being of the public at large.”  The Federal Register notice notes that a request could meet any of these factors to be seen as in the public interest.  The latter term (“consistent with railroad safety”) would be defined to mean “at least as safe or safer than the status quo (i.e., without the proposed relief).”  These definitions are intended to maintain or improve railroad safety and to align with the Department of Transportation’s “innovation principles” or other public interest factors.  They are also intended to ensure consistency in FRA’s evaluation of waiver requests.

FRA is further proposing to require that railroads seeking waivers include in their petitions “documentation demonstrating meaningful good faith consultation with potentially affected stakeholders, including applicable rail labor stakeholders.”  FRA states that it would likely deny as incomplete any petition that “fails to document meaningful consultation,” which, for localized requests, “would likely include communities along the railroad’s right-of-way.”  This new requirement is driven by FRA’s observation that petitions frequently do not address potential impacts on stakeholders, leading FRA to undertake consultation efforts itself.  This requirement would account for the bulk of the proposed rule’s costs.

The remaining proposed substantive amendments include a requirement that requests for renewals or expansions include data on the effectiveness of the waiver and compliance with conditions included in the previous grant of relief, and a change to the regulation governing the public comment period, which will now be automatic rather than at FRA’s discretion.  FRA is also proposing technical and clarifying revisions to its rules of practice governing waivers, including separating the requirements for the contents of waiver petitions and rulemaking petitions, adding a clarification of when a proceeding is deemed to be initiated for purposes of the 12-month time limit for its disposal, and updates to obsolete terms, citations, and references to filing procedures.

Comments are due December 30, 2024, and may be filed on regulations.gov in Docket No. FRA-2024-0033.  The NPRM is available at 89 Fed. Reg. 85895. 

Roadway Worker Protection Rule

FTA issued a Final Rule on October 31, 2024 that enacts new RWP regulations.  The regulations require rail transit agencies that are part of the state safety oversight program under 49 C.F.R. Part 674 to plan for and implement an RWP program applicable to workers whose duties involve inspection, construction, maintenance, repairs, or safety on or near the roadway or right-of-way with the potential of fouling a track.  The Final Rule defines fouling a track to mean placing the worker’s self or equipment in a position that a moving vehicle or on-track equipment could strike either; the Final Rule, unlike the Proposed Rule, notes that such positions typically are within four feet of the outside rail on both sides of track.  Each agency’s RWP program must include specific program elements and an RWP manual and must be reviewed and approved by its State Safety Oversight Agency (SSOA). 

A key component of the Final Rule is a prohibition on the use of individual rail transit vehicle detection, in which a worker is responsible for visually determining if trains are approaching.  Instead, agencies must use the Safety Risk Management (SRM) processes required under the Public Transportation Agency Safety Plan (PTASP) regulations to establish redundant protections for each category of work a given roadway workers perform.  Redundant protections may include procedures, such as advance warning systems, or physical protections, such as derailers and shunts.  The redundant protections would be included in the RWP program.

Other required program elements include the designation of a roadway worker in charge for each roadway work group; the provision of job safety briefings by the roadway worker in charge before a roadway worker group fouls a track; a prohibition on lone workers fouling the track outside of certain limited circumstances; and an RWP training program.  Agencies will also need to develop procedures that dictate methods for accessing the track zone, providing ample time (defined as the time necessary to clear a track zone or reach a place of safety 15 seconds before a rail transit vehicle moving at the maximum authorized speed on the track could reach the worker’s location), determining appropriate sight distance (the length of track visible to a roadway worker), providing jobs safety briefings whenever a rule violation is observed, providing for good faith safety challenges to assignments, reporting unsafe acts and conditions and near-misses on the roadway, and training.  The RWP manual must document the RWP program and its elements, and also define worker responsibilities for the RWP program, training requirements by labor category or type of work performed, processes and procedures to provide adequate safety for all transit workers who may access the roadway, and a track access guide.  

SSOAs must update their Program Standards in light of the RWP program and audit agencies annually to assess compliance with and the effectiveness of the agency’s RWP program.  SOAs must also review the RWP manual every two years. 

The Final Rule is mostly identical to the proposed rule.  Key changes include the addition of the four-foot benchmark to the definition of fouling a track, the removal of a specific distance benchmark from the definition of “track zone,” a change in timeline for implementation (RWP programs must now be approved by December 2, 2025, instead of within 90 days of the SSOAs receipt of the Program), and the permission for agencies to designate a single roadway worker in charge for multiple roadway work groups within common working limits, so long as each work group is accompanied by a similarly qualified employee.

FTA projects that the regulations would result in more than $15 million in annual benefits due to a reduction of 1.2 fatalities and 2.4 injuries per year, both of which are smaller than projected in the proposed rule. That is balanced against more than $13 million in annual costs, due primarily to redundant worker protections and training.

The regulations are authorized by 49 U.S.C. § 5329(b), which directs FTA to create and implement a national public transportation safety plan containing minimum safety standards. The Final Rule is published at 89 Fed. Reg. 87166 and will be codified at 49 C.F.R. Part 671 on its effective date, December 2, 2024. 

If you have questions about the RWP Final Rule or either NPRM, please contact  Ayelet Hirschkorn, Suzanne Silverman, Charles Spitulnik, Christian Alexander, or Grant Glovin.

Kaplan Kirsch is pleased to announce its national and regional recognition as one of the 2025 “Best Law Firms” by Best Lawyers®. This recognition, published in the 15th annual report, reflects Best Lawyers®’ trusted methodology, which draws on extensive research, including survey participation from 4,739 law firms, 101,528 references submitted by 2,375 firms, and votes from 26,073 participants across 23,117 firms nationwide.

National Rankings Tier 1

• Native American Law

National Rankings Tier 2

• Land Use and Zoning Law

National Rankings Tier 3

• Construction Law
• Litigation – Environmental
• Railroad Law
• Transportation Law

Metro Rankings Tier 1

• Colorado
  • Construction Law
  • Environmental Law
  • Land Use and Zoning Law
  • Litigation – Environmental
  • Real Estate Law
• San Francisco
  • Native American Law

Metro Rankings Tier 2

• Colorado
  • Natural Resources Law
• Washington, D.C.
  • Transportation Law

Metro Rankings Tier 3

• Colorado
  • Energy Regulatory Law
• Washington, D.C.
  • Railroad Law

The Town of Rico, Colorado, a historic mining town located next to the Dolores River in Dolores County, recently reached a landmark agreement with Atlantic Richfield Company to implement an innovative and multi-faceted lead mitigation program.  Rico, Atlantic Richfield, and the Colorado Department of Public Health and Environment (CDPHE) worked closely together for many years to develop the Rico Voluntary Cleanup and Redevelopment Program (VCUP), which will remediate elevated levels of lead in Rico’s soil, which are present throughout the town.  Kaplan Kirsch attorneys Tom Bloomfield and Samantha Caravello represented Rico in the negotiation and development of the Rico VCUP .

Under the Rico VCUP, Atlantic Richfield will remediate developed properties and provide funding and technical support for the remediation of roads and undeveloped properties as those properties are developed.  This site-specific approach will protect public health while allowing Rico and property owners to retain control over the remediation process and minimizing disturbance to the town’s natural beauty.  CDPHE will provide oversight throughout program implementation.

Additionally, Rico adopted a land use ordinance that will apply to digging and excavation activities on properties in the town and will require steps to maintain remediation once performed. Both Rico and CDPHE will have the power to enforce the land use ordinance pursuant to an intergovernmental agreement. This approach avoids the need for deed restrictions for individual properties. 

Kaplan Kirsch is proud to have assisted Rico in obtaining this significant benefit for the community.

Read more: Oil company agrees to clean up historic lead contamination in settlement with small Colorado mining town | Colorado Sun | October 31, 2024

Samuel Kohn joins the Kaplan Kirsch team as a Partner in the Native American Law practice. Prior to joining the Firm, Sam served as Senior Counselor to the Assistant Secretary – Indian Affairs at the U.S. Department of Interior where he played a vital role in supporting the Biden administration’s policies for Indian Country, addressing a wide range of issues critical to Tribal communities.

Sam has a robust background in Indian Affairs. He has extensive experience in areas including the Indian Self-Determination Education and Assistance Act and Public Law 102-477, fee-to-trust issues, gaming, cultural preservation and repatriation, Indian Arts and Crafts, and collaborative stewardship. He has participated in rulemaking, interagency negotiations, and defense of actions under the Administrative Procedure Act. Additionally, he has managed nearly all stages of trial litigation, contributed to various appellate matters, and has professional background in ordinance development, rights of way and transportation, healthcare, tort claims and Tribal sovereign immunity, and data privacy in Indian Country.

Sam’s commitment to Indian law is deeply personal. He is an enrolled member of the Apsáalooke Nation (Crow Tribe of Montana) and was raised on the Tribe’s reservation in southeastern Montana. He views the practice of Indian law as both a professional endeavor and a meaningful way to give back to his community.  Samuel’s diverse experience and deep understanding of the legal landscape uniquely position him to provide immediate and impactful legal support for Tribal needs both nationwide and in California.

Sam has served as a law clerk in the United States District Court for the District of Montana and the Montana Supreme Court.

We are proud to announce that Firm Counsel Bill Silberstein was honored at the High Line Canal Gala, Dine for the High Line, on September 20th. Bill was recognized as a High Line Hero for his significant contributions to the High Line Canal Conservancy and his pro bono work on the recent conservation easement granted to the Conservancy by Denver Water on 45 miles of the Canal.

The High Line Canal is a treasured community asset, originally dug in 1883 to supply water to farmers and acquired by Denver in the 1920s. Though it has outlived its usefulness as a water delivery canal, it has become a multi-use recreational path for hiking, biking, and a nature retreat within the Denver metropolitan area. The perpetual conservation easement ensures the Canal will forever be maintained as a public linear open space park and trail, free to the public, while protecting its unique conservation values. These values include preserving the natural environmental beauty and public recreational benefits of this greenway, preventing future development, and continuing stormwater management and public utility uses.

 As a pro bono project for Kaplan Kirsch, Bill helped to craft the conservation easement, working alongside lawyers, staff, and boards at the Conservancy, Denver Water, and Arapahoe County. His recognition is a testament to his hard work and dedication.