Kaplan Kirsch & Rockwell attorneys represented the Kennebec Coalition, a group of environmental organizations who successfully secured the nation’s first ever federally ordered removal of a hydroelectric dam.  The tenth anniversary of that historic event was recently recognized in an editorial in The New York Times.

On July 2, 2009, the FAA dismissed a Part 16 complaint filed against Firm client, Montrose County, Colorado.  A company located adjacent to the Montrose Regional Airport alleged that the County had granted an exclusive right to the on-Airport FBO and engaged in economic discrimination.  Complainant’s factual allegations concerned its unsuccessful efforts to become the second full-service FBO at the Airport.  The FAA correctly determined that the County did not violate the Grant Assurances.

On June 12, 2009, the U.S. Court of Appeals for the Ninth Circuit rejected the City of Las Vegas’ challenge to a change in departure procedures at Las Vegas McCarran International Airport.  In City of Las Vegas v. FAA, petitioners challenged the Environmental Assessment prepared by the FAA analyzing the environmental consequences of reinstating a turn to the north for certain flights departing from the Airport.  The court summarily rejected each of petitioners’ claims under NEPA and the Clean Air Act.

On June 10, 2009, the U.S. Court of Appeals for the District of Columbia Circuit denied twelve consolidated petitions challenging the FAA’s decision to redesign the airspace surrounding airports in New York, New Jersey, and Philadelphia.  In an unpublished opinion, the court in County of Rockland v. FAA rejected each of the claims presented by the petitioners, including arguments based on NEPA, the Department of Transportation Act Section 4(f), and the Clean Air Act.

Kaplan Kirsch & Rockwell attorney Polly Jessen is profiled in Brownfield News.

On May 14, 2009, an FAA Hearing Officer issued the initial decision in an enforcement proceeding against Firm client, the City of Santa Monica, based on the City’s decision to ban category C and D aircraft at the Santa Monica Airport.  After a hearing in March 2009, the Hearing Officer held that the ban was inconsistent with (i) Grant Assurance 22 (Economic Nondiscrimination), (ii) deed restrictions in an instrument transferring Airport property from the federal government to the City under the Surplus Property Act, and (iii) the terms of a 1984 agreement between the City and the FAA.  The Hearing Officer found for the City in concluding that the ban did not grant an exclusive right in violation of federal law and Grant Assurance 23 and that the FAA’s claim that the ban is preempted is not reviewable in an administrative proceeding under FAR Part 16.  The City and the FAA Office of Airport Safety and Standards have until May 29, 2009, to file an appeal of the initial decision with the FAA Associate Administrator for Aviation Policy, Planning, and Environment.

On May 5, 2009, the FAA dismissed a Part 16 complaint filed against Firm client, the Metropolitan Nashville Airport Authority.  The owner of a shoe shine concession at the Nashville International Airport alleged that the Airport Authority had discriminated against it in violation of 49 C.F.R. Part 23.  Factual allegations primarily concerned the complainant’s sublease with a master concessionaire.  The FAA correctly determined that the complainant had failed to establish a prima facie claim of discrimination.

On May 1, 2009, the U.S. Court of Appeals for the Second Circuit denied petitioner’s challenge to the FAA’s approval of a new commercial service airport in Panama City, Florida.  The airport sponsor proposed to construct a new airport to replace an existing airport with inadequate runway safety areas and limited opportunities for expansion.  The court, in NRDC v. FAA, rejected each of petitioner’s arguments challenging the adequacy of the Environmental Impact Statement and further rejected petitioner’s argument that the FAA’s decision did not satisfy the requirements of the Airport and Airway Improvement Act.  Construction of the new airport is ongoing and scheduled to be completed in 2010.

The Federal Transit Administration (FTA) announced that it published final guidance on the application of 49 U.S.C. § 5324(c), which permits the FTA to provide funds for the acquisition of existing railroad right-of-way (ROW) under certain circumstances prior to the completion of any environmental review required for a project to be built on the corridor.  The acquisition must only involve linearly configured right-of-way that is readily identifiable as a railroad corridor.  The interest to be acquired may be fee simple title, an easement, lease or trackage rights, as long as the duration of the interest covers both the time needed to build a transit facility on the ROW and the useful life of that transit facility.  The use of any FTA funds for the acquisition will be subject to all environmental requirements, with the exception of timing.  In addition, the acquiring agency must comply with all other applicable federal requirements, most notably the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act and its implementing regulation at 49 CFR Part 24.

On April 20, 2009, the City of Chicago announced that the deal to privatize Midway Airport will not go forward.  The City of Chicago had granted approval to lease the Airport for $2.5 billion to the Midway Investment and Development Company, consisting of Citi Infrastructure Investors, YVR Airport Services Limited and John Hancock Life Insurance.  MidCo already has paid the City a down payment of $126 million.  Chicago intended to dedicate the lease proceeds to the City’s pension fund and to local infrastructure projects.