Court Rejects Challenge to Waste Transfer Station Near LaGuardia Airport
On April 9, 2013, the U.S. Court of Appeals for the Second Circuit dismissed a challenge to an FAA letter to the City of New York concerning the planned waste transfer station near LaGuardia Airport. In the letter, the FAA endorsed the findings of a blue-ribbon panel of experts and recommended that the City implement the panel’s recommendations for mitigating wildlife hazards associated with the transfer station. The court held that the letter was not a reviewable final order and that the court therefore lacked jurisdiction to consider the petition for review. For a copy of the court’s opinion, click here.
FAA Postpones Contract Tower Closures
On April 5, 2013, the FAA announced that it would delay closure of 149 federal contract air traffic control towers until June 15, 2013. The FAA explained that the delay would give the FAA time to attempt to resolve several legal challenges to the planned closures and give airports time to decide whether to assume responsibility for funding tower operations. Kaplan Kirsch & Rockwell has filed suit on behalf of more than 10 airports challenging the planned closures. Over 20 airports and airport organizations nationwide have filed suit. For a copy of the FAA press release announcing the extension, click here. For further information about the litigation, contact Peter Kirsch.
FAA Dismisses Complaint Against Kent County, Michigan
On March 28, 2013, the FAA Director of the Office of Airport Compliance and Management Analysis dismissed a complaint filed under FAR Part 16 by two FBOs against firm client, Kent County, Michigan. The complainants are two FBOs at the Gerald R. Ford International Airport. They alleged multiple violations of the Grant Assurances in connection with the County’s consideration of a request by a third FBO to lease property at the Airport. The Director rejected each of the claims and found that the County had complied fully with the Grant Assurances in its consideration and negotiation of the lease. For a copy of the Director’s Determination, click here.
State Court Upholds Change in Telluride Curfew
On March 20, 2013, the Colorado District Court granted summary judgment for firm client, Telluride Regional Airport Authority, in a suit over the nighttime curfew at the Telluride Regional Airport in Colorado. In 2011, the Airport Authority expanded the hours during which the Airport is operational each day. Plaintiffs claimed that the change was inconsistent with the Special Use Permit for the Airport and subject to review under the San Miguel County land use code. The court dismissed Plaintiff’s claim for mandamus relief on the basis that the County’s enforcement of its land use code is discretionary. For a copy of the court’s opinion, click here. For media coverage, click here.
Court Acknowledges Disabled Passenger’s Right to Sue Airline
On March 12, 2013, the U.S. Court of Appeals for the Ninth Circuit held that the Air Carrier Access Act (“ACAA”) does not preempt state-law personal-injury claims by a disabled passenger against an airline. In Gilstrap v. United Airlines, plaintiff filed a tort claim against an airline for improper treatment at multiple airports. The court held that the ACAA preempts state law standards of care but does not preempt state remedies for violations of the ACAA. The court also found that the ACAA is the applicable statute, and not the Americans with Disabilities Act (“ADA”), because the ADA does not apply to areas of an airport controlled by airlines. For a copy of the court’s opinion, click here.
Court Rejects Claims Against Airport for Plane Crash
On February 8, 2013, the U.S. District Court for the Western District of Oklahoma granted summary judgment for the Oklahoma City Airport Trust and the City of Oklahoma in a wrongful death suit for an aircraft accident. In 2008, an aircraft departing the Wiley Post Airport struck one or more birds, causing the plane to crash and five deaths. The court granted summary judgment 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 aircraft accident. For a copy of the court’s opinion, click here.
FAA Releases Draft AIP Handbook
On January 31, 2013, the FAA released a draft updated Airport Improvement Program Handbook, Order 5100.38D. The order contains critical information on the eligibility of particular entities and the eligibility of specific projects and costs for financial assistance through the AIP. The draft order contains a substantial reorganization of the current AIP Handbook (Order 5100.38C). The FAA is accepting comments on the draft order until March 18, 2013. For a copy of the draft order, click here. For further information, contact Dan Reimer or Peter Kirsch.
Washington Supreme Court Finds Airport May Be Liable for Tug Operator’s Injuries
On January 31, 2013, the Washington Supreme Court found that the Port of Seattle may be liable for injuries sustained by a tug operator employed by a ground handling company. In Afoa v. Port of Seattle, the Washington Supreme Court found that the Port may be liable under alternate theories: that the Port owed a duty to the tug operator as a “business invitee,” that the Port violated an obligation under the Washington Industrial Safety and Health Act, and that the Port had a duty to maintain safe common areas of the airport. The court remanded the case back to the trial court, which had granted summary judgment for the Port. This case may have broad effects on airports because of the common law theories of tort liability adopted by the court. For a copy of the court’s opinion, click here.
FAA Makes Minor Changes to Part 139
On January 16, 2013, FAA published a Final Rule containing minor amendments to FAR Part 139. The amendments include minor changes in the applicability provision; a change in the definition of “joint-use airport”; a prohibition on fraudulent or false statements in applications, records or reports; and requirements for recurrent training for pedestrians and ground vehicles operating in the movement areas and safety areas. FAA decided not to make several other changes identified in the Notice of Proposed Rulemaking, published in February 2011. For a copy of the Federal Register notice containing the Final Rule, click here.
TRB Publishes Legal Research Digest on Regulating Greenhouse Gas Emissions
On December 26, 2012, the Transportation Research Board published ACRP Legal Research Digest 17: State and Federal Regulations that May Affect Initiatives to Reduce Airports’ GHG Emissions, prepared by the firm. The Digest provides an introduction to legal issues that are relevant to implementing GHG mitigation measures at airports. Specifically, it describes the various sources of GHG emissions that are generated from airport-related activities; it summarizes the federal, state, and local laws that are most likely to be implicated in the implementation of GHG mitigation measures; and it explains how these laws may apply to specific measures. The Digest can be downloaded or ordered here.