On March 5, 2010, the Florida Circuit Court denied a motion for class certification filed by plaintiffs in a suit against Firm client, Martin County, Florida.  The complaint is based on theories of inverse condemnation, trespass, and nuisance associated with jet aircraft operations at Martin County Airport – Witham Field.  The court held a hearing on class certification in December 2009.  The court concluded that plaintiffs had not satisfied several conditions for class certification and followed a long line of cases denying class certification in suits involving airport noise impacts.

On March 3, 2010, the FAA Assistant Administrator for Civil Rights and Diversity Advocate issued a Final Decision and Order affirming in all respects a Director’s Determination issued in favor of Firm client, the Metropolitan Nashville Airport Authority.  As previously reported in Airport Law News, a concessionaire at the Nashville International Airport filed a complaint against the Airport Authority alleging discrimination under the Airport Concession Disadvantaged Business Enterprise rules.  The Assistant Administrator determined that the Director correctly found that the Airport Authority did not discriminate against the concessionaire in its administration of the ACDBE program or in its actions regarding the particular concession. 

RTD, with Representation by Kaplan Kirsch & Rockwell, Concludes Major Property Acquisition and Facilities Relocation Agreement with BNSF Railway for the FasTracks Program

On Wednesday, March 31, 2010, RTD and BNSF Railway signed agreements giving RTD possession of over 15 miles of rail corridor for construction of the FasTracks commuter rail project, and providing for RTD to relocate BNSF facilities as necessary to accommodate RTD’s planned operations. The combined value of the property acquisition and relocation work totaled $144 million. This acquisition will enable RTD to start construction of its Gold Line and Northwest Rail Corridors, create a connection between Denver Union Station and RTD’s proposed commuter rail network, and provide access to RTD’s planned commuter rail maintenance facility.

Kaplan Kirsch & Rockwell represented RTD in connection with the transaction and provided counsel relating to the real estate transfer, related title matters, review and analysis of agreements relating to the acquired property, rail-related federal regulatory approvals, and coordination of extensive technical and legal issues. The Firm managed and hosted the closing ceremony in its Denver office, and served as the base of operations for the final coordination of the transaction between RTD and BNSF in the days leading up to the closing. The transaction drew on the extensive expertise of Kaplan Kirsch & Rockwell’s attorneys in complex real estate transactions, rail regulatory requirements, rail technology and construction.

RTD and BNSF executed a Purchase and Sale Agreement for the property acquisition, a Relocation and Construction Agreement to govern RTD’s construction of BNSF’s relocated facilities, and a Joint Corridor Use Agreement for the long-term shared use of the rail corridors serving RTD’s Gold Line and Northwest Rail Corridor. The consummation of these agreements marks the culmination of over five years of negotiation between BNSF and RTD. RTD General Manager Phillip Washington remarked: “Our partnership with BNSF is a successful example of how a transit agency and railroad entity can work together in the best interests of the whole region.” BNSF’s Assistant Vice President of Passenger Operations, DJ Mitchell, characterized the successful agreement as part of BNSF’s “cooperative history of working with commuter rail agencies,” and stated that BNSF looks forward to “continuing to work with RTD in their efforts to bring commuter rail service to the Denver region.”

A PDF of this special Rail Law Alert is available.

Both the House and Senate took up consideration of legislation on February 22, 2010, to place safety oversight of local passenger rail transit systems under federal jurisdiction.  The measures pending before Congress, H.R. 4643 and S. 3015, are based on a proposal submitted by FTA on December 9, 2009.  Currently, each transit system in the U.S. is subject to local safety oversight, with wide variation across the country in the legal authority and scope of enforcement vested in each governing body.  The legislation sets out three broad goals: First, it would require the Secretary of Transportation to establish and enforce minimum federal safety standards for rail transit systems not regulated by Federal Railroad Administration.  The legislation also provides the Secretary the option to establish a safety program for public transportation bus systems.  Second, the Secretary would establish a program under which a state would be eligible for federal transit financial assistance to carry out a federally-approved public transportation safety program.  A state would not be preempted from establishing a more stringent safety standard if the standard meets certain criteria, and the Department of Transportation would enforce the federal safety standards if a state were to elect not to participate in the safety program.  Third, the program would ensure that a state agency overseeing transit systems would be fully financially independent from the transit systems it oversees.

On February 18, 2010, the Council on Environmental Quality (CEQ) issued draft guidance regarding the evaluation of climate change and greenhouse gas emissions in National Environmental Policy Act (NEPA) analyses.  In the draft guidance, the CEQ identified 25,000 tons per year as a possible threshold for additional quantitative and qualitative review of climate issues.  The CEQ proposed that such analysis include assessment of “aspects of climate change that may lead to changes in the impacts, sustainability, vulnerability and design of the proposed action and alternative courses of action.”  Comments will be due on the draft guidance 90 days from the publication of the draft in the Federal Register in late February or early March. 

Also on February 18, 2010, the CEQ issued another draft guidance document relating to mitigation and monitoring under NEPA.  The CEQ guidance recommends bolstering the role of mitigation and monitoring in the NEPA process, including steps to assure that mitigation steps are both implemented and effective in reducing impacts.  Comments on the mitigation and monitoring guidance document will also be due 90 days from the publication of the draft in the Federal Register in late February or early March.

Airport Improvement Magazine published an article.in the January-February 2010 issue about an innovative approach to constructing a new terminal at the Key West Airport that shared the construction management risks between the contractor and the airport.  While the Construction Manager at Risk (“CMAR”) is a well-accepted approach to project delivery, it is relatively new in the airport construction realm.  Kaplan Kirsch & Rockwell advised both the contractor and the airport sponsor in ensuring compliance with FAA requirements on this project.

On February 8, 2010, the U.S. Court of Appeals for the Tenth Circuit affirmed the District Court’s refusal to enjoin full-plane deicing near passenger loading gates at Denver International Airport (DIA).  Plaintiffs sought injunctive relief under the Resource Conservation and Recovery Act of 1976; however, the District Count found—and the Court of Appeals affirmed—that plaintiff’s had not established that full-plane deicing near DIA’s Concourse B presents an imminent and substantial endangerment to health.  The City and County of Denver presented evidence that full-plane deicing near Concourse B had been suspended at that it had initiated measures to address contamination by aircraft deicing fluid.

On February 2 and 3, 2010, the Department of Transportation (DOT) published a series of notices regarding the Disadvantaged Business Enterprise (DBE) and Airport Concession Disadvantaged Business Enterprise (ACDBE) programs. In a notice of proposed rulemaking, DOT proposed to remove the “sunset” provision in the ACDBE rules and solicited comments on possible changes in the rules to better achieve the ACDBE program’s objectives. Comments on changes in the rules must be submitted by November 1, 2010. In another notice, DOT amended the DBE rules to require recipients of financial assistance to submit DBE goals every three years. The previous rule required that DBE goals be submitted annually. In the third notice, DOT requested comments on its plan to extend the requirement of the DBE rules that recipients of financial assistance maintain a DBE directory and report on DBE participation. The deadline for comments is April 5, 2010.
 

The Obama Administration released its transportation budget for fiscal year 2011 on February 1, 2010, calling for $79 billion in transportation funding, an increase of two percent over the FY2010 budget.  The proposal’s stated priorities are to improve transportation safety, invest for the future, and to promote livable communities.  Highlights of the proposal include $4 billion to create a national infrastructure bank, the National Infrastructure Innovation and Finance Fund, to finance major transportation projects, an additional $1 billion for the development of high-speed rail, more than $500 million to help state and local governments make more sustainable transportation investments as part of the administration’s multi-agency Sustainable Communities Partnership, and $30 million for the Federal Transit Administration to strengthen safety oversight and hire additional staff for that purpose.  The proposal does not include measures to address the Highway Trust Fund, which is expected to end FY2010 with a shortage of $1 billion, or to provide funding for the implementation of positive train control technology as mandated by the Rail Safety Improvement Act of 2008.