ACI-NA Weekly Legal Briefing--Issue 13

                 ACI-NA’s Weekly Legal Briefing                  

Volume 2012, Issue 13

Week of July 16 – 20, 2012

Legal Affairs Committee Members:

The following matters are highlighted for your informaiton.

Litigation Developments:

  • On July 18, 2012, the U. S. Court of Appeals for the Ninth Circuit issued a decision in Baughman v. Walt Disney World Company,  reversing the district court’s holding that the plaintiff, who suffered from muscular dystrophy, was judicially estopped from claiming that she could not use a motorized wheelchair and granting summary judgment for Disney.  Also at issue in the case is whether the Americans with Disabilities Act (“ADA”) may require Disney to permit segways at its theme parks.  The plaintiff in this case also challenged Disney’s policy of prohibiting the use of a segway at its theme park under the ADA, since she was unable to use either of the types of devices permitted under Disney’s policy, namely wheelchairs and motorized scooters.  This may be an important case for airports to follow since it will better delineate the requirements of places of public accommodation to make reasonable accommodations to individuals with disabilities.


  • On July 17, 2012, the Supreme Court of Wisconsin issued its decision following a review of the decision of the Court of Appeals in Brenner, Wickenhauser, Seidling and Seidling v. New Richmond Regional Airport commission and City of New Richmond.  Landowners in this case alleged that an extension of the Airport’s runway by 1500 feet amounted to a taking of an easement without just compensation because the resulting overflights had adverse effects on their properties.  The lower court ruled that in order for a taking by the government to be compensable, the property owner had to be deprived of all or virtually all of the beneficial use of the property or any part of it. 


The Court of Appeals reversed that ruling, holding that the “standard for regulatory takings does not apply to physical occupation cases.”  The appeals concluded that a taking occurs in airplane overflight cases “when government action results in aircraft flying over a landowner’s property low enough and with sufficient frequency to have a direct and immediate effect to the use and enjoyment of the property.”  The Court then remanded the case to the circuit court to make factual findings and apply the correct standard to determine whether there were takings of the property.


The Wisconsin Supreme Court agreed with the appeals court that the circumstances under the record with respect to the takings alleged in this case did not show a ‘regulatory taking’.  The Court then went on to evaluate whether a taking involving “actual occupation” of private property occurred under the facts alleged by plaintiffs, and if so, what damages standard should be applied tor such a taking.  The Supreme Court found that the standard for a taking in an airplane overflight case is “whether the overflights have been low enough—that is, invasions of a person’s block of superadjacent airspace—and frequent enough to have a direct and immediate effect on the use and enjoyment of the person’s property.”  The Court determined that the trial court applied the more stringent standard of a regulatory taking and thus erred in its ruling.  The Supreme Court therefore upheld the ruling of the Court of Appeals, remanding the case to the trial court to apply the correct standard.


So this case is not over!  The trial court must now hold additional hearings, as necessary, to determine whether a taking occurred under the facts developed.

Matters of On-Going Interest

  • Recent Development Involving Trademark Applications for Three Letter Airport Codes by Anheuser-Bush

In response to federal trademark applications for the registration of over 40 three-letter U.S. commercial airport codes by counsel for Anheuser-Busch, ACI-NA submitted a cease and desist letter this week requesting that the company withdraw those applications due to the likelihood of confusion that could arise by the company’s use of airport three-letter codes on its products and merchandise.

Regulatory Issues of Interest:

  • DOT Issues Draft Manual to Assist Airlines Provide Access to Passengers with Disabilities

In the July 5th Federal Register, DOT published a draft update of its technical assistance manual, “What Airline Employees, Airline Contractors, and Air Travelers with Disabilities Need to Know About Access to Air Travel for Persons with Disabilities”.  The primary purpose of the Manual is to help employees and contractors of airlines to assist passengers with disabilities in accordance with their responsibilities under the Air Carrier Access Act and its implementing regulations, 14 CFR Part 382.  This draft updates the Department’s 2005 Manual and provides guidance regarding the recent extensive changes that have been made to Part 382.  The Manual follows the chronological path of a passenger with a disability from making a reservation through the completion of the trip.  The Manual includes separate chapters on the ACAA and Part 382; on assisting passengers planning a trip; on assisting passengers at the airport; on assisting passengers with boarding, deplaning, and during the flight; on handling complaints; on interacting with passengers with disabilities, and on personnel training.  Even through this manual addresses the responsibilities of airlines, the manual also can provide helpful information for airport operators, especially the chapter dealing with airport accessibility and the chapter dealing with sensitivity and awareness issues when interacting with passengers with disabilities.  The manual also includes tips for communicating and interacting with individuals with specific types of disabilities.  Comments on this draft update to the technical assistance manual are due October 3, 2012.

-Submitted by James Briggs-

Conferences, Events, and Publications of Interest

Sessions on Saturday, September 8, will provide insights for lawyers who are involved in airport development projects.  Join us in Calgary, Canada!   Additional information regarding ACI-NA’s Annual Conference, including registration information, is available at:

  • The FAA’s Office of Civil Rights is offering its Third Annual FAA National Civil Rights Training Conference, August 28-30, 2012. The training conference will include all aspects of civil rights and nondiscrimination compliance affecting airports around the country.


The Ritz-Carlton, Pentagon City
1250 South Hayes Street
Arlington, VA 22202
(703) 415-5000

Room Rate:  $169.00
Hotel cut-off date:  8/10/2012






The conference is offered free of charge.  
Please email Amy Poore at to register, obtain additional information, or to request a reasonable accommodation by July 31, 2012.

A registration form is available here

You may also register online:




This newsletter is an unedited committee product that has not been subjected to peer review.  The opinions and comments in these articles do not represent the views of the Transportation Research Board.


If you have information of interest to share, forward it to me by COB on Thursday of each week.

  Send it to:

Have a great weekend!


Monica R. Hargrove
General Counsel

Direct: (202) 861-8088

Please be advised that ACI-NA’s office has moved.  As of June 11, our new address is:

1615 L Street, NW

Suite 300
Washington, DC 20036


Our phone and e-mail contacts remain unchanged.