session 01 - introduction to airport law · 35th annual airport law workshop requires airport...

35TH ANNUAL AIRPORT LAW WORKSHOP

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35th Annual Airport Law Workshop

INTRODUCTION TO AIRPORT LAW

Nick Clabbers

Kaplan Kirsch & Rockwell

Katie van Heuven

Kaplan Kirsch & Rockwell

Session #1

35TH ANNUAL AIRPORT LAW WORKSHOP

Two ways to participate PollEv.com/AirportLaw

Text AIRPORTLAW to 22333 (not case sensitive)

Enter your answer (by letter or number)

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AIRPORT LAW TOUCHES EVERYTHING

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Real Estate

Regulatory Compliance

Administrative

Environmental

Land Use

Bonds

Open Records

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I PRACTICE AIRPORT LAW!

Counselor

Negotiator

Mediator

Litigator

Therapist

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AIRPORT LAW THROUGH A TRAVELER’S EYES

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FIRST WE HAVE TO GET THERE

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ARRIVING AT THE TERMINAL

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TIME TO CHECK IN

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SECURITY CHECK

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MOOOOOOM, I’M HUNGRY

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PREPARE FOR TAKEOFF…

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…AND HOPE FOR A SMOOTH FLIGHT

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LEARNING THE LAW

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Formal federal sources Statutes

Federal Aviation Regulations (14 CFR)

Adjudications (Part 16)

Local sources Minimum Standards

Rules and Regulations

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WHERE’S THE LAW?

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Guidance and policy FAA Orders

Advisory Circulars

Policy Statements

Guidance Letters

Standard Operating Procedures (SOPs)

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WHERE’S THE LAW?

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Advisory Circularshttps://www.faa.gov/airports/resources/advisory_circulars/

Airport Ordershttps://www.faa.gov/airports/resources/publications/orders/

FAA SOPshttps://www.faa.gov/airports/resources/sops/

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NO REALLY, WHERE IS THE LAW?

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FAA Website https://www.faa.gov/airports/airport_compliance/

LEXIS, Westlaw

FAA Part 16 database

TRB/ACRP ACRP Legal Research Digest 21 – sortable FAA decisions Update coming soon!

ACRP Website Search New ACRP publications on Grant Assurances

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OTHER USEFUL TOOLS

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BUT WAIT, THERE’S MORE

Grant Assurances1

Deeds(Surplus Property Act)2

Part 139 regulations (commercial airports)3

Revenue Use Policy4

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GRANTS

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Grant Assurances 39 separate requirements

Legally binding by contract

Principal issues Assurance 5 – rights and powers

Assurance 22 – economic nondiscrimination

Assurance 23 – exclusive rights

Assurance 24 – fee and rental structure

Assurance 25 – airport revenue24

GRANT ASSURANCES1

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Contractual, not regulatory But Congressionally mandated

20-year duration Clock resets at each grant

FAA gets to enforce Prosecutor, judge, jury, executioner

Court review only after FAA decision

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GRANT ASSURANCES1

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Surplus Property Act Many of same restrictions as grant assurances

Perpetual (no 20-year limitation)

Makes real estate sale difficult

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DEEDS2

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Requires airport operating certificates for airports that: Scheduled and unscheduled operations; aircraft with more than 30

seats

Scheduled operations; more than nine seats but less than 31 seats

Part 139 inspection Administrative inspection of airport files, paperwork, etc.

Facilities inspection

Post inspection briefing with airport management

Far less regulation of general aviation airports27

PART 139 REGULATIONS(COMMERCIAL AIRPORTS)

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Federal statute prohibits “diversion” of revenue at airport that has been grant obligated since 1996

Prohibition against revenue diversion is perpetual

Very complex definitions

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REVENUE USE4

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Operation of national aviation system is a “cooperative scheme” FAA (aircraft and airspace)

Airports (ground operations; airport operations)

Congress has preserved “proprietary powers and rights” of airport operators (not police powers)

Jurisprudence has evolved in the last 100 years Few bright lines

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PREEMPTION

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PREEMPTION

Non operational mattersOff airport land use

Local health/safety

Operational restrictionsAirfield regulationsCertain financial matters

Aircraft in flightAircraft certificationPilot certification

Express preemption

Implied / conflict preemption

No preemption

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LEARNING THE LANGUAGE

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CRITICAL AIRPORT TERMINOLOGY Airport Property• “Aeronautical”• “Non-Aeronautical”

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CRITICAL AIRPORT TERMINOLOGY

“Airside”• Airport

Operations Area (AOA)

• Security Identification Display Area (SIDA)

“Landside”

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CRITICAL AIRPORT TERMINOLOGY

↙Runway 22

↗Runway 4

Runway 4/22

Source: By Orion 8 - Own work, CC BY-SA 3.0https://commons.wikimedia.org/w/index.php?curid=28151549

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Air Traffic(ATO)

Airports Safety Space

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UNDERSTANDING AND WORKING WITH FAA

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Airport safety, inspections, standards, airport design, construction, and operation

Airport Improvement Program (AIP) grants

Passenger facility charges (PFCs) approvals

National airport planning and environmental requirements

Policies on rates and charges, compliance with grant assurances, and privatization

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FAA AIRPORTS DIVISIONAssociate

Administrator

Kirk Shaffer

Director of Airport Policy

Elliott Black

Compliance / Management Analysis

Kevin Willis

Deputy Assoc AdminWinsome Lenfert

Safety / Standards

John Dermody

Airport Planning /Programming

Bob Craven

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FAA REGIONS Regional office

Airports District Office (ADO)

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Agency is huge; airports function is not!

Airports District Office (ADO) is first point of contact

Don’t be afraid to call!

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DEALING WITH FAA

Funder

Regulator

Adjudicator Advocate

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Focus is on current compliance, not generally punitive action Generally ADO or region

Adjudication of grievances Part 16 for grant assurances

Part 13 for informal grievances

Occasionally, rarely, court

Penalties; corrective action Negotiated

Exclusive jurisdiction in US Ct. Appeals (49 U.S.C. § 46110)39

A WORD ON ENFORCEMENT

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STAKEHOLDERS

Local Govt’sFAA

NeighborsGeneral Aviation

Non-aeronautical

UsersConcessions Tenants Utilities

Ground Access

Providers

Developers

StateFBOs

Airlines

Air Traffic

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Airports have an unlimited supply of money.

Airports are just like other local government functions.

The federal government only regulates money and aircraft.

We can do whatever we want with our airport.

Airports only exist to serve _______.41

RECOGNIZE COMMON MISTAKES

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Review the Airport Design

Advisory Circular

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ATTORNEY ADVERTISEMENT. The contents of this presentation, current at the date of publication, are for reference purposes only and do not constitute legal advice.The contents do not reflect the official opinion of Kaplan Kirsch & Rockwell LLP. Responsibility for the information and views expressed within this document lies entirely with the author(s).© 2019 Kaplan Kirsch & Rockwell LLP

QUESTIONS?

Nick Clabbers

nclabbers@kaplankirsch.com

Katie van Heuven

cvanheuven@kaplankirsch.com