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