Legal Affairs Committee News
Noise Land: Acquisition, Management and Disposal of Noise Land Under AIP. FAA Guidance to Regions Concerning Land Acquired Under Airport Noise compatibility Programs: On August 15, 2007, ACI-NA submitted comments to the Airports Division of FAA on draft internal FAA guidance regarding the “Acquisition, Management and Disposal of Noise Land Under AIP”. The FAA’s guidance was developed as part of the agency’s efforts to respond to a 2005 report by the DOT Inspector General. That report urged FAA to tighten requirements relating to the disposition of land acquired with AIP funds to be used for noise compatibility purposes. On August 27th, 2007, the FAA granted ACI-NA’s request for an extension of time to file plans for the re-use of noise land by the 11 airports that had been audited by the DOT OIG. These 11 airports now have until March 28, 2008, to file re-use plans. Other airports which received grants for the purchase of noise land have until August 2009 to file re-use plans.
Rates & Charges: LAX III -- Alaska Airlines v. Los Angeles World Airports. Seven domestic airlines and 31 foreign carriers filed a DOT complaint against Los Angeles World Airports alleging that recent increases in the terminal rates for domestic Terminals 1 and 3 and for the Tom Bradley International terminal at LAX were unreasonable and discriminatory. The new terminal charges applied to carriers without long-term leases at LAX. In addition, several carriers operating out of Terminals 2 and 4, under leases that do not expire for 15 to 18 years, filed a separate case now pending in federal district court in Los Angeles; the carriers there claimed that their leases with Los Angeles World Airports do not permit an increase in the Operations and Maintenance charges in ways similar to those challenged in the DOT proceeding. The U.S. DOT issued its final decision on June 15, 2007, and a supplement decision on July 13, 2007, regarding refunds due to carriers.
Inverse Condemnation: Clark County, Nevada v. Vacation Village, Inc. ACI-NA filed an amicus brief in support of a petition for certiorari that Clark County filed with the U.S. Supreme Court, asking the Court to take discretionary review of a July 23, 2007, decision by the U.S. Court of Appeals for the Ninth Circuit. In Clark County, Nevada v. Vacation Village, Inc., the Ninth Circuit considered whether the same airport zoning and height-restriction ordinances at issue in McCarran International Airport v. Sisolak (a 2006 Nevada Supreme Court case) effected a taking of airspace. The Ninth Circuit’s decision is significant because the court expressly stated that the Nevada Supreme Court's analysis of federal takings jurisprudence in Sisolak was wrong, but that it had "no choice," in the absence of federal preemption, except to apply Sisolak and find Clark County liable for a taking under the Nevada Constitution. In Sisolak the Nevada Supreme Court found that the plaintiff landowner had a property interest in the airspace above his land up to 500 feet and that the height-restriction ordinance effected a “per se” taking of this airspace because the ordinance authorizes airplanes to make a permanent, physical invasion of the owner’s airspace and excludes the owner from doing anything in this airspace. The Ninth Circuit's decision confirms that Clark County and McCarran International Airport have no viable federal or state court solution to the problem created by Sisolak in the absence of the Supreme Court's involvement. The issues raised in Vacation Village have substantial implications for the national air transportation system.
Inverse Condemnation: Biddle v. BAA Indianapolis, LLC, Indiana Supreme Court, January 23, 2007. Homeowners filed claims for inverse condemnation due to noise from aircraft approaching and departing Indianapolis International Airport. The Indiana Supreme Court used 500 feet as the upper limit for inverse condemnation and presumed no taking of property unless flights above 500 feet affected private property so severely as to amount to a practical destruction or a substantial impairment. Here, the court ruled that noise from aircraft flying above 1300 feet AGL did not amount to a practical destruction or substantial impairment of homeowners’ use of property and, thus, the aircraft noise did not effect a taking.
Inverse Condemnation: River City Capital, L.P. v. Bd. Of County Comm’rs, Clermont County, Ohio, 6th Cir., June 6, 2007. One of a long line of federal cases that state that a landowner must exhaust all state remedies before proceeding in federal court based on an alleged unconstitutional taking of private property by a government entity.
Airport Screening Checkpoint: U.S. v. Aukai, 9th Cir. en banc, August 10, 2007. The 9th Circuit in the past has held that airport screening searches are constitutionally reasonable administrative conducted as part of a general regulatory scheme in furtherance of an administrative purpose (to prevent the carrying of weapons or explosives aboard aircraft). However, in this case, the 9th Cir. makes clear that the reasonableness of such searches is not dependent upon consent of the passenger to the search. All that is required to authorize the search is the passenger’s election to attempt entry into the secured area of an airport. That election occurs when a prospective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine. Once that occurs, the passenger may not elect to end the search and leave the airport. However, the search must not be more extensive or intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.
Airport Proprietary Rights: Thermco Aviation, Inc. v. County of Los Angeles, Part 16 Complaint, FAA Docket No. 16-06-07, June 21, 2007. In a case where an aircraft hangar tenant at Van Nuys Airport filed a Part 16 complaint against Los Angeles World Airports, the FAA stated that airport sponsors retain the prerogative to develop their airports in any manner that meets their federal obligations and is consistent with the approved Airport Master Plan and Airport Layout Plan for that airport; that an airport sponsor retains the proprietary right to make financial business decisions regarding the development of the airport; and that it was not inappropriate to decline to enter into a hangar lease for an area slated for redevelopment for aeronautical uses.
Clean Water Act: N. California River Watch v. City of Healdsburg, 9th Circuit, August 6, 2007. The Court ruled that a city's discharge of sewage from its waste treatment plant into a body of water was subject to the Clean Water Act since the water body and its wetlands possessed, through groundwater seepage, a "significant nexus" to navigable waters, and neither a waste treatment system nor an excavation operation exception applied to the discharges.
Clean Air Act: Engine Mfrs. Ass’n v. S. Coast Air Quality Maint. Dist., 9th Cir., August 20, 2007. Court ruled that political subdivisions of a state are exempt, as market participants, from federal preemption under the Clean Air Act. Thus, political subdivisions of a state must comply with the stricter state rules involving the purchasing, procuring, leasing, and contracting decisions of state and local governmental entities for vehicle fleets. "The district court’s decision in this case appears to be the first of any court to analyze the market participant doctrine under the federal Clean Air Act."
Clean Air Act: Nat’l Ass’n of Clean Air Agencies v. EPA, D.C. Cir., June 1, 2007. The court upheld EPA’s final rule that increased the stringency of nitrogen oxide emissions for newly certified commercial aircraft gas turbine engines. The court also approved EPA’s approach to place added emphasis on safety when considering emissions from aircraft engines.
Law Enforcement Actions: Fox v. DeSoto, 6th Cir., June 4, 2007. The court found that a law enforcement officer for the Louisville airport had probable cause for the arrest of an armed and disruptive IRS agent who was removed from an aircraft at the request of the pilot.
Age Discrimination in Employment Act: Final Rule, Coverage Under the Age Discrimination in Employment Act, 29 CFR Part 1625, Equal Employment Opportunity Commission, 72 Fed. Reg. 36873, July 6, 2007. The rule explains that the ADEA prohibits only employment discrimination based on old age and, therefore, does not prohibit employers from favoring relatively older individuals.
First Amendment Issues: Preminger v. Sec. Of Veterans Affairs, Federal Circuit, August 17, 2007. A Department of Veterans Affairs (VA) regulation that governs the conduct of visitors on VA property and prohibits visitors to VA property from engaging in demonstrations unless authorized by the VA is valid and does not, on its face, violate the First Amendment. The court found that the VA property was a “non-public” forum. This case discusses several cases involving the public-forum analysis for airports.
Employee Speech: Lindsey v. City of Orrick, Missouri, 8th Cir., June 26, 2007. The court denied qualified immunity to the city for firing a city employee who accused the city council, during a public meeting, of violating the state’s open meetings law. A reasonable public official would have realized that it was illegal to terminate an employee for speaking out about the city’s perceived violations of the open-meetings law as the employee’s speech was as a citizen and on a matter of public concern.
U.S. GAO Reports Of Interest To Airports.
Airport Finance: Observations on Planned Airport Development Costs and Funding Levels, and the Administration's Proposed Changes in the Airport Improvement Program. GAO-07-885, June 29, 2007. Planned airport development costs total at least $14 billion annually over the next 5 years as expressed in 2006 dollars. This estimate is a combination of FAA’s estimate of $8.2 billion in AIP grant-eligible projects and $5.8 billion from ACI-NA’s estimate of projects not eligible for AIP. From 2001 through 2005, airports received an average of about $13 billion a year for planned capital development. If airports continue to attract this level of funding for planned capital development, this amount would annually fall at least $1 billion short