Judge Dismisses the City of Santa Monica’s Action Regarding the Santa Monica Municipal Airport.

Judge John F. Walter of the Central District of California granted the Federal Aviation Administration’s Motion to Dismiss the City of Santa Monica’s lawsuit regarding whether the City had to continue to operate the airport as an airport.  (Download a copy of the decision here).  As is typical of rulings granting Motions to Dismiss, although the Court ruled in the FAA’s favor, it did so without addressing the fundamental issue raised by the Complaint: when the 1984 Settlement Agreement expires may the City close the Airport?

Instead, the Court dismissed the lawsuit on three separate grounds.  First, and most importantly, the Court stated that the City’s action to quiet title was barred by the statute of limitations. The Court said that the City knew or should have known that the United States claimed an interest in the Airport Property in 1948 and that even if the City did know about the U.S.’s interest, the U.S. did not abandon its interest in the Airport. This count was dismissed with prejudice, meaning that the City could not bring this argument again. This is a serious blow to the City’s suit since the Quiet Title action was probably its strongest argument.

Second, the Court granted the FAA’s Motion to Dismiss with respect to the City’s “takings” claim on the basis that they were premature.  The Court states in its Order that the City must first ask the U.S. for compensation before a takings lawsuit will lie. The Court relied on Williamson County v. Regional Planning Comm’n, 473 U.S. 172, 195 (1985) which states that “takings claims against the Federal Government are premature until the property owner has availed itself of the process provided by the Tucker Act.”  Therefore, the Court granted the Motion to Dismiss, but this time without prejudice.

Finally, the Court found the City’s claims of violation of the 10th Amendment and the Due Process clause of the 5th Amendment by requiring the City to operate the Airport in perpetuity not to be ripe for review.  In essence, the Court concludes that because the City has not yet decided or even declared its intention to cease operations at the Airport, the Court cannot decide whether the 10th and 5th Amendments have been violated. As the Court explains, it “recognizes that a decision would be helpful to the City in evaluating the future of SMO, and as much as the Court would like to address the merits of the City’s claims, the Court reluctantly concludes that it would be constitutionally impermissible to do so.”  As such, the Court dismissed the City’s Fourth and Fifth Claims for Relief, also without prejudice.

While the Quiet Title action was put to rest, (unless the City decides to appeal) all other actions remain open to the City to pursue – just not right now.  For now, Round One goes to the FAA.

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Aviation/Airport Stories We Are Following for the Week of September 9 – 13, 2013

Monday, September 9, 2013

Sequester and Budget Cuts Loom Over Aviation. With the end of the fiscal year approaching (Sept 30), and no new budget for DOT in sight stories are beginning to appear concerning the effects of the sequester and what will happen if no agreement is reached.  DHS Secy Napolitano warns of the long security lines at airports because of budget cuts. http://usat.ly/19ArqjF Airline execs warn of the disruptive effect that air traffic tower closures will have as the next round of sequester cuts loom in October. http://reut.rs/1evTOaj Stay tuned, there certainly will be more to this story.

Failing to Execute a “Go-Around” Leading Cause of Accidents. Bloomberg is reporting this morning that the three recent U.S. air crashes could have been avoided if the pilots had aborted their landings at the first sign of trouble and done a “go-around.” According to the article, airline rules state that if an approach is “unstablized” at 1000 ft in poor visibility or 500 ft in clear conditions, the pilot should go around. But this does not happen. Pilots say the criteria are unrealistic and want stds that require aborted landings only in dangerous situations. http://bloom.bg/16ePW9X

Tuesday, September 10, 2013

Hearing on Control of Ontario CA Airport Set for Later This Month. In one of two high-profile disputes over control of airports (Charlotte NC being the other), a Riverside County CA Superior Court judge set a hearing on Sept 25 of LA’s Motion to Dismiss, which claims that there is “no sound, legal or factual basis” the City of Ontario to reclaim control of ONT. The dispute, which has been brewing for years, centers around the fact that the number of passengers at ONT is declining rapidly, while LAX’s passengers are growing.  Ontario claims that LA, which owns ONT, has not promoted ONT and is siphoning off passengers.  Ontario filed a lawsuit on June 4, 2013, seeking to reclaim control of ONT. http://bit.ly/17U7p6j

Forget Ticket Sales, Airlines Now Make Lots of Money on Fees. According to a new report published yesterday, extra fees generated $27.1B in revenue for airlines in 2012. This is up from $22.6B in 2012. http://bit.ly/14IYm5T Although legacy carriers like United ($5.4B), Delta ($2.6B), and American ($2B) led the way in terms of total dollars, low-cost carriers counted on ancillary fees for a larger percentage of their revenues. Ancillary fees accounted for 38.5% of Spirit’s revenues, 30% of Allegiant’s and 27% of Britain’s Jet2.  One advantage for the airlines: fees are not subject to the same tax requirements as tickets. http://politi.co/14CsW6H

Wednesday, September 11, 2013

Will DOT/FAA Continuing Resolution Stop Furloughs? The House came out with its Continuing Resolution yesterday, and, while not addressing the furlough issue head-on, it does seem to provide the FAA with some wiggle room http://1.usa.gov/1eeSHxT. It stipulates that the FAA may use money “for operations necessary to avoid furloughs” so long as the agency has “taken all necessary actions to reduce or defer nonpersonnel-related administrative expenses.” The CR will run through Dec 15. However, WHERE that money will come from to avoid furloughs and tower closures is another question.  As reported here last week, the FAAMA wants it to come from the Airport Improvement Program http://bit.ly/17EHvBd,  but Politico is reporting that ACI-NA and AAAE are now opposing that move.http://politi.co/18Um5Bm

Noise From New Flight Procedures Still An Issue In Queens. Even after the New York State Assembly passed legislation last year requiring the Port Authority of New York and New Jersey to conduct a “Part 150” Noise Compatibility Program for LaGuardia and JFK airports, Community Board 11 (#CB11) in Northeast Queens passed a resolution that calls on NY Governor Cuomo to approve a bill requiring the PANYNJ to conduct noise studies. Residents are upset that Congress gave the FAA a pass on conducting environmental studies last year when developing new flight procedures, despite the fact that the new procedures may have significant impacts on residents. http://bit.ly/15WhhcR

Thursday, September 12, 2013

American/USAirways Merger Still In The News. DOJ filed an Amended Complaint last week, adding MI as a Plaintiff and cutting 29 routes from the list that will have allegedly high levels of concentration post-merger. http://1.usa.gov/1aEYMSS  American and USAirways filed their responses on Tuesday, claiming that the merger would increase competition and is in line with the previous airline mega-mergers to which DOJ did not object. http://bit.ly/15WRNwX And the airlines are seeking approval to delay the original Dec 17 deadline for completion of the merger. http://bit.ly/16nfaDf No surprises here.

UPDATE: Judge Sean H. Lane of the United States Bankruptcy Court in Manhattan approved American Airlines’ bankruptcy plan on Thursday but ruled that the decision was contingent on Justice Department approval of the carrier’s merger with US Airways. http://1.usa.gov/17UBbdb

LA County Recommends LAX Operators “Give Consideration” To Alternatives. LA County Planning officials – the Airport Land Use Commission – recommended Wednesday that the Los Angeles World Airports (LAWA) “give consideration” to alternatives to the controversial moving of the North Runway at LAX. However, the Commissioners made it clear that the recommendation does not carry consequences if not complied with. The ALUC also rejected a request to issue an order requiring LA City Council to reconsider its approval of the entire LAX package of improvements. http://lat.ms/1aF288x

Friday, September 13, 2013

Increase In In-Air Mistakes, FAA Reports.

FAA’s yearly report on air safety, issued yesterday, stated that aircraft flew too close to each other 4,394 times last year, more than double the number from the previous year.  http://1.usa.gov/1e9mY0c Of those near misses, 41 were classified as “high risk,” and 7 could have ended in a catastrophe.  FAA chalked the increase off to the use of a new electronic monitoring system now in use. The DOT IG challenged that notion in an Audit Report issued Feb 27 stating that “the increase in reported errors was linked, in part, to a rise in actual errors rather than increased reporting.” http://1.usa.gov/14RKFSp

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Aviation/Airport Stories We Are Following for the Week of August 19 – 23, 2013

Monday, August 19, 2013.

More Fallout and Analysis of the AMR/US Airways Merger Antitrust Lawsuit.

First the fallout: Teamsters, seeking to organize employees of American Airlines drop their effort blaming the lawsuit.  http://bit.ly/16CDUZU At the same time US Airways CEO is seeking labor union support in the wake of the lawsuit.  http://onforb.es/1cU1V23 Both the New York Times and Wall Street Journal ran editorials positing that the antitrust lawsuit was arbitrary and/or a case of too little too late.  http://nyti.ms/19DZL5a http://bit.ly/160GJ0E

Mysteries Still Abound with UPS Crash.

Over the weekend, investigators reported that both the autopilot and the autothrottle were engaged until moments before impact.  Robert Sumwalt, the Senior NTSB official at the site said that the autopilot remained engaged until the last second of recorded data, even though the pilots received a “rate of descent warning” indicating the plane was descending too quickly. http://bit.ly/19tlqto http://bit.ly/16WFnGY

Tuesday, August 20, 2013.

Another FOIA Lawsuit – This One Regarding TWA Flight 800.

One of the Co-Producers of the recent documentary about the crash of TWA Flight 800, Thomas Stalcup, filed two lawsuits in MA last week alleging that he received inadequate responses to Freedom of Information requests to the Missile Defense Agency and the Naval Special Warfare Command regarding the crash of TWA Flight 800. One of the ongoing allegations by investigators has been that a missile brought down TWA Flight 800. http://bit.ly/16Ix453

Wednesday, August 21, 2013.

Climate Change and Aviation Industry, Not So Big in the U.S.

While Europe has been on the forefront of developing regulations regarding the effects that aviation has had (and will have) on the climate. As a Huffington Post blogger pointed out yesterday, the aviation sector accounts for 6% of all industrial climate emissions – and that is larger amount. http://huff.to/1arqHok  ICAO, the U.N. aviation agency is supposed to release its plan in late September, but it is likely that it will put off the decision once again.  http://bit.ly/17K25Cg Meanwhile, back in the states, airlines have been banned from complying with the European standards by the European Union Emissions Trading Scheme Prohibition Act of 2011. http://bit.ly/1f2bZ4U

Sen. McCaskill Wants New FAA Rule on Personal Electronics on Planes.

Earlier this month, Sen Claire McCaskill (D-MO) sent a letter along with 9 of her Senate colleagues to FAA Administrator Huerta asking him to hurry the process up of new regulations concerning the in-flight use of Portable Electronic Devices (PED).  The Senators are pushing for an expedited treatment of the Aviation Rulemaking Committee’s findings once it reaches consensus. http://bit.ly/14WiyAj

Thursday, August 22, 2013

“Process Patents” At Heart of Lawsuit Against Airlines.

Copytele, Inc.’s subsidiary Loyalty Conversion Systems filed 10 patent infringement lawsuits against 10 airlines in connection with their frequent flyer programs.  LCS alleges that the airlines, in converting frequent flyer miles to other rewards, such as hotel stays, rental cars, infringe on LCS’ process patents.  LCS claims that 16 of its patents cover the numerous aspects of the points conversion process which are used by both the airlines and their partners. http://bit.ly/19zKHCr  In its accompanying press release, Copytele brags that it “now has 20 active lawsuits across 5 patented technology areas.” http://bit.ly/18MkAHg

Friday, August 23, 2013

Pilots Need to Be Taught to Pay Attention.

In an article in USA Today, Bart Jansen writes about how better and more reliable cockpit technology has led to fewer crashes, but could leave pilots less attentive.  http://usat.ly/1dzAkB3 Because the technology is reliable, it is human nature to pay less attention to working systems, but what happens when they malfunction?  Will pilot training about how to properly monitor the automated systems help?  This topic was explored a little over a month ago after the Asiana crash http://yhoo.it/154QOjP and it promises to be a topic of discussion in the future due to the UPS crash where there seemed to be no mechanical reason for either crash.

FAA Issues Policy to Improve Workplace Safety for Aircraft Cabin Crewmembers.

OSHA and FAA announced on Thursday, August 22, 2013, that air cabin crew members will receive workplace protections. Since 1975 FAA has claimed exclusive jurisdiction to crafting workplace regulations for airplane crews due to its legal authority over all things aerial. But in the 2012 FAA reauthorization bill, Congress required FAA to work with OSHA to develop a policy on when OSHA requirements would apply to crew members. This policy is the result of those discussions, which gives OSHA authority to develop requirements, so long as they do not conflict with FAA regulations. http://1.usa.gov/13Wnw0A http://bit.ly/14paP1U

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AMR/US Airways Antitrust Lawsuit Continues To Dominate Aviation Headlines

Top stories in Aviation and Airport News for August 15, 2013.

AMR/US Airways Antitrust Suit Continues to be Aviation’s Top Story

Everybody has an opinion as to what happened and why the DOJ filed its antitrust lawsuit and what it means for American’s coming out of bankruptcy.  Here are some of the top stories from analysts:  Bloomberg, http://bit.ly/1cPTnIF L.A. Times Editorial http://bit.ly/1cPTrbk Dallas News Editorial http://bit.ly/127r5mL .  Here’s an article about how frisky American’s lawyers are: http://bit.ly/18xntM2 .  Finally, an article about the lawsuit’s effect on investing in airlines, http://bit.ly/1bzfSyo

Data Recorders Recovered in AL UPS Crash

Running a close second to the antitrust news is the UPS Crash in Birmingham, AL. Investigators into the crash of the UPS Airbus A300 near Birmingham-Shuttlesworth International Airport on Tuesday, August 13, 2013, were able to recover the data recorders and have sent them back to D.C. for analysis. It is hoped that the devices would explain why the pilots did not send out a distress call prior to crashing.  Although the aircraft had had 12 “service difficulty” reports prior to the crash, none appear to be under investigation as the cause.  Investigators are looking at the jet engine blades to determine if the engines were not running at the time of the crash.  http://bit.ly/13odMkI

Dreamliner Hit With Another Setback

ANA, Japan’s second airline, said that it had discovered a wiring defect in the fire-suppression system on 3 of the airline’s 787 Dreamliners.  Japan Airlines, recalled a 787 back to Tokyo as a precaution.  This is just the latest in the 787’s woes, from battery problems, to wiring in the emergency radio transmitter have plagued the 787.  Still, the plane’s manufacturer, Boeing, is claiming they are just working out the kinks of any new aircraft – especially one like the 787, which was groundbreaking from a technical standpoint.  http://bloom.bg/15JJfrW

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RTCA’s Paper on “CatEx 2” for NextGen Implementation is Legally Indefensible

Last year, the FAA Modernization and Reform Act of 2012 (FMRA) http://1.usa.gov/13T4RGi was passed. Included in that law was a provision that provided that:

Any navigation performance or other performance based navigation procedure developed, certified, published, or implemented that, in the determination of the Administrator, would result in measurable reductions in fuel consumption, carbon dioxide emissions, and noise, on a per flight basis, as compared to aircraft operations that follow existing instrument flight rules procedures in the same airspace, shall be presumed to have no significant effect on the quality of the human environment and the Administrator shall issue and file a categorical exclusion for the new procedure.

FMRA, § 213(c)(2), included as a note to 49 U.S.C. § 40101 (emphasis added).  Dubbed “CatEx 2” because it was the second categorical exclusion included in FMRA, it was meant to alleviate some the legal issues that the FAA had encountered in implementing Required Navigation Performance (RNP) and Area Navigation (RNAV) procedures pursuant to NextGen.  In September, 2012, the FAA asked the NextGen Advisory Committee (NAC) to offer its recommendation for implementing CatEx 2.  The reason the FAA asked NAC to take a look at the problem was because the FAA was having difficulties in developing a method to implement CatEx 2 and stay within the language of the statute.  Part of the difficulty was that the FAA correctly identified the problem.  As explained in the RTCA’s report, the FAA asked for guidance “on how ‘measurable reductions’ in noise from performance-based navigation (PBN) procedures ‘on a per flight basis’ might be assessed consistent with the legislative language, given that FAA typically uses methods that aggregate noise, which take into account the noise exposure of people on the ground from aircraft flights in the vicinity over an average daily period.”  Unfortunately, the method developed by the “CatEx 2 Task Group” of the NAC is inconsistent with the statutory language as well.

In June, 2013, the RTCA published its Recommendation for Implementing the Categorical Exclusion in Section 213(c)(2) of the FAA Modernization and Reform Act of 2012 (“Report”) http://bit.ly/1eECVr6.  The CatEx 2 Task Group developed what they called a “Net Noise Reduction Method” that they claimed could be implemented as part of CatEx 2.  However, in developing its method, the CatEx2 Task Group made a critical assumption that is, ultimately, legally indefensible.  Instead of adhering to the plain language of the statute, the Task Group began with the assumption that “on a per flight basis” actually means “on an average per flight basis.”  The Task Group made that assumption from reading the Conference Report for FMRA.

The Conference Report states the intent of CatEx 2 to “require the FAA to provide a categorical exclusion for RNP/RNAV procedures that would lead to a reduction in aircraft fuel consumption, emissions and noise on an average per flight basis.”  It is the view of the CatEx 2 Task Group, which was confirmed with relevant Congressional staff, that this language allows for averaging the noise impact on a representative basis over flights undertaking a particular procedure. As discussed in greater detail below, this observation and finding fundamentally informed the Task Group’s work on a method to implement Section 213(c)(2).

Report, p.6.  However, this view, even if it is reported in the Conference Report and confirmed by the relevant Congressional staff runs counter to the specific language contained in the statute that was passed by both the House and the Senate and signed by the President.  As such, the Task Group’s conclusion that “averaging the noise impact on a representative basis over flights undertaking a particular procedure” is legally indefensible.

The approach taken by the Task Group does not hold up to legal analysis because, in the first place, it assumes that if this interpretation were ever brought before a court for review, the court would look to the legislative history (in this case, the Conference Report) to determine the meaning of the statute.  This assumption, however, is fundamentally flawed.  When a court examines a statute to determine its meaning it looks first at the plain language of the statute in order to determine if the language is ambiguous.  See, e.g. Public Citizen v. United States Department of Justice, 491 U.S. 440, 470 (1989)(Kennedy, concurring)(“[w]here the language of a statute is clear in its application, the normal rule is that we are bound by it”) http://bit.ly/14E67gv.  In this case, the statute specifically states that the noise reduction must be on a “per flight basis.”  Moreover, the FAA, before handing the problem off to the NAC, read the statute as meaning “on a per flight basis,” without averaging when it first tried to come up with a method of implementing the statute.  Thus, it is likely that the statement in the Conference Report that the Task Group relies so heavily on would not even be considered by a Court in determining the meaning of the statute.

Second, a court only turns to a statute’s legislative history if a court finds that it will assist the court in ascertaining the intent of Congress in drafting the legislation the way it did.  See, e.g., School Board of Nassau County v. Arline, 480 U.S. 273 (1987) (resort to legislative history was proper to assist in determining whether Congress meant to include disabled person who became disabled through contracting a contagious disease) http://bit.ly/13eM4a9.  Even then, Supreme Court Justice Scalia has been critical of using legislative history to interpret statutory language.  U.S. v. Romani, 523 U.S. 517, (1998)(Scalia, concurring)(“I have in the past been critical of the Court’s using the so-called legislative history of an enactment (hearings, committee reports, and floor debates) to determine its meaning”) http://bit.ly/18pElnN.  If, however, the Court finds that the legislative history confuses the matter instead of clarifying it, then the Court will ignore the legislative history.  See, e.g., Estate of Reynolds v. Martin, 985 F.2d 470, 477 (9th Cir. 1992)(“where the legislative history of a statute is so confusing and contradictory that it is of no use in ascertaining Congress’s intent, we should not attempt to use it as a guide”) http://bit.ly/11ZDsS3.  Thus, even if a Court were to consider the Conference Report, the language cited by the Task Group in the Conference Report most likely would be ignored since it makes the statutory provision ambiguous.  That is, it is not clear in the Conference Report what the word “average” refers to, and is certainly not clear that it means what the Task Group thinks it means.  To look at it another way, if the language contained in the Conference Report had actually made it into the statute, then there would be a good argument that a court should look to the legislative history of the statute to determine what the Congress meant by the provision.

Finally, a court will not consider changing the meaning of a statute when the Congress had the opportunity to include the language that was mentioned in the legislative history, but did not include it.  This is a corollary of the previous canon of statutory construction and a outgrowth of the law’s perception of contracts:  if you had in there before and changed, there probably was a good reason it was changed and it is not the Court’s place to second guess Congress.  Thus, if Congress meant “noise on an average per flight basis,” it would have included the word “average” in the statute instead of leaving it out.  It cannot be argued that Congress was unaware of the difference in the language, since the Conference Report mentions the word “average,” but for whatever reason, the version voted upon by the House and the Senate and signed by the President did not include the word “average.”  And the Task Group cannot read the word back into the statute without congressional action.

Thus, from a legal perspective, it is highly unlikely that a court would look past the clear and plain language of the statute to conclude that Congress meant to allow averaging the noise impact on a representative basis undertaking a particular procedure.  This is a huge issue for the Subgroup, since the “Net Noise Reduction Method” developed by the Task Group is dependent on using averaging.  The desire to use averaging is based on the fact that the FAA and its noise consultants have been using DNL as their noise metric since the 1970’s.  To change to a single-event noise level, as indicated by the statue would call into question existing regulatory structure that the FAA has in place to measure and (poorly) regulate aircraft noise.  In the end, if neither the FAA nor the Task Group can come up with an approach that fits within the plain language of the statute, then the statute must be changed.  Just because the statutory language does not fit in the FAA’s and the Subgroup’s noise metrics Procrustean Bed, the Task Group cannot blithely assume away the difficulty presented by the language of CatEx 2.

Even if one were to accept the Task Group’s premise that DNL is an acceptable metric to use and falls within the language of the statute, there is at least one other issue that needs to be addressed.  The Task Group’s proposed method does not evaluate noise impacts below 45 DNL.  One of the assumptions that the Task Group relies on to support its failure to consider noise impacts below 45 DNL is that “legal challenges to air traffic actions have included noise levels as low as DNL 45 dB (thus, a method using a threshold down to DNL 45 dB arguably is conservative and responsive to potential community concern).”  However, in the recently decided case of Helicopter Association International v. FAA, Case No. 12-1335, (D.C. Cir. July 12, 2013) http://1.usa.gov/16atUXs the U.S Court of Appeals for the D.C. Circuit decided that it was acceptable for the FAA to require the use of flight paths to reduce noise impacts, even if those noise impacts are demonstrably below 45 DNL.  Thus, it would stand to reason that any method developed to implement CatEx 2 should include levels below 45 DNL.

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Aviation Stories We Have Been Following This Past Week

Here are some of the news stories we have been following this past week, July 22 – 26, 2013.  Most these were posted on Taber Law Group, P.C.’s Google+, Facebook, LinkedIn and Twitter account.  Please follow us on one or more of those social media sites!

Monday, July 22, 2013

When Dreams Turn to Nightmares.

As if last week’s fire was not enough, now there are reports that a Japan Air Boeing Dreamliner had to turn around and land at Boston’s Logan Airport because of a faulty fuel pump indicator as a “precautionary measure”   http://usat.ly/12O9X6i .  To make matters worse for Boeing, AirBus is trying capitalize on Boeing’s problems with the Dreamliner saying “it’s pretty obvious that this airplane is not reliable and does not have mature systems  . . .You can keep it flying but it’s going to cost you a lot of maintenance.” http://bit.ly/131U8nQ

“And I’ll Mount The Head Right Next to my 12 Point Buck . . .”

In case you missed it last week, Deer Trail CO is considering an ordinance drafted by one of its citizens that would allow hunting unmanned flying drones within the city limits.  Of course, you would have to purchase a drone hunting license from the city.  http://bit.ly/124pws2.  Just so there is no doubt, however, the FAA issued a statement saying that people shooting at drones will be prosecuted and reminded the public that the FAA, not Deer Trail City Council, regulates the nation’s airspace, including the airspace over cities and towns and private property.  http://wapo.st/154GjZX

The Return of The Birds.

Although not precisely a story about the dangers of bird strikes, the San Jose Mercury News ran a story over the weekend about how an explosion of the sea gull population is causing problems, including increased strikes at Mineta San Jose International Airport.  http://bit.ly/1bRHAqZ  As pointed out before, this is an aviation safety issue that has not been adequately addressed by the FAA, or its partner in crime in this matter, the USDA’s Wildlife Services.

Wednesday, July 24, 2013

Everything Old Is New Again.

While the general public looks at the collapsed landing gear of the #Southwest #Boeing 737 at #LaGuardia ( http://reut.rs/14AqX1P ) as the latest in a string of mishaps for Boeing, let us not forget that just over two years ago #FAA mandated that Southwest inspect its older 737s for wear and tear. In addition, in 2009 Southwest was fined $7.5 million by the FAA after the agency found that Southwest operated 46 of its Boeing 737s on nearly 60,000 flights without performing mandatory inspections for fatigue cracks in their fuselages. See, e.g., http://bit.ly/gdG3IC

American Eagle’s White Christmas.

DOT announced yesterday that on Christmas Day, 2012, American Eagle had 10 flights with delays of more than 3 hours in Dallas.  Although 8 of those flights were exempt from the FAA’s tarmac delay rules, 2 flights, one from Baton Rouge and one from Sioux Falls, S.D., resulted in a $200,000 fine to the airline.  The airline and the DOT came to an agreement on the fine.  American Eagle was the first airline fined under the tarmac delay rules having been fined $900,000 for delays at O’Hare on May 29, 2011.  http://usat.ly/15dCr9e

Looming Trade War.

Lurking on the horizon is a trade war between Europe and the U.S. over greenhouse gas emissions from aircraft.  An EU delegation met with the Obama Administration to talk about an International Civil Aviation Organization (ICAO) resolution for a market-based plan to curb greenhouse gas emissions from aircraft.  If no resolution is agreed to, the EU could impose its previously passed emissions trading system on airlines, which may set off a trade war.  ICAO’s general assembly meets in Sept/Oct to consider the options.  http://reut.rs/138c3u6 

Thursday, July 25, 2013

EAA’s AirVenture In Court May Be Over? 

Politico is reporting that Sen. James Inhofe (R-OK) has been told that new Secretary of Transportation Foxx is considering reversing the FAA’s request for payment for air traffic controllers at the Experimental Aircraft Association’s extremely popular  AirVenture in Oshkosh, WI, also known as the “Oshkosh Fly-In.”  EAA recently sued the FAA claiming that the air traffic controllers were already paid through fuel excise taxes and that the EAA should not be required to pay for a required governmental service.  “He is considering this. He’s going to look at this and maybe consider just going ahead and paying, as they should for this,” Inhofe told Politico’s Kevin Robilard.  http://politi.co/1dXusil

Boeing’s Land Purchase Scrutinized by FAA. 

FAA is looking over Boeing’s purchase of airport property from the Charleston International Airport, near where Boeing assembles its 787 Dreamliner.  Because of federal grant assurances and restrictions on use of airport revenues, sales of airport property for use by private businesses that do not benefit the airport’s operations are strictly scrutinized to ensure that all of the regulations are complied with. Apparently, there are issues with the price as well.  http://bit.ly/1434dIMhttp://bit.ly/18y9o1j

Friday, July 26, 2013

Senators Offers Aviation Amendments to Slow Moving Transportation Appropriations Bill.

Sen. Claire McCaskill (D-MO) proposed a provision releasing St. Clair, MO from its grant obligations so that the financially strapped town can close the airport, which it has been trying to do for several years now.  Sen. Kelly Ayotte (R-NH) proposed an amendment that would limit Essential Air Services (EAS) funding to airports located over 90 driving miles from either a medium or large hub airport.   Sen. Thad Cochran (R-MS) submitted an amendment that it is the “sense of Congress” that the Department of Transportation “should continue the process of drafting regulations on the integration of unmanned aerial systems [i.e., drones] into the national airspace system.”  http://1.usa.gov/169no1v

Will Chicago’s Third Airport Finally Take Off? 

After years of wrangling as to who will control the construction and operation of an airport to be built on the far south side of Chicago near a small town called Peotone, IL, Gov. Pat Quinn signed legislation putting Illinois’ Department of Transportation in charge of building and managing the airport, called “South Suburban Airport” by the FAA and “Abraham Lincoln National Airport” by former Rep. Jesse Jackson.  Despite the signing of the bill, there is still many questions to be answered before the airport actually gets built and begins operations. http://cbsloc.al/167sbAy 

DOT/FAA and GAO Do Not See Eye-to-Eye on Future of Aviation Recommendations. 

On July 25, 2013, the General Accountability Office (GAO) issued a report to Congressional Requesters on the Status of DOT’s Actions to Address the Future of Aviation Advisory Committee’s Recommendations.  In that report the GAO examined 10 of the Future of Aviation Advisory Committee’s 23 recommendations to see what progress is being made on those recommendations, if any.  While the FAA believed that it had addressed 7 of the 10 recommendations, the FAAC members saw it differently.  They told the GAO that only 1 of the 10 recommendations had been addressed.

The ten recommendations examined were:  (1) Exercise strong national leadership to promote U.S. aviation as a first user of sustainable alternative fuels; (2) Establish a harmonized approach for aviation carbon dioxide emission reductions; (3) Support extending the alternative minimum tax (AMT) exemption for airport private activity bonds; (4) Fund accelerated Next Generation Air Transportation System equipage of aircraft; (5) Review eligibility criteria for the Airport Improvement Program and Passenger Facility Charge Program; (6) Promote the global competitiveness of the U.S. aviation industry; (7) Ensure coordination and focus on science, technology, engineering, and math (STEM) education programs; (8)Seek legal protections for safety data; (9) Support predictive analytic capabilities for safety data; (10) Review and reprioritize FAA’s rulemaking initiatives.

FAA proposes $2.75 Million Civil Penalty Against Boeing for Quality Control Violations.

Late in the afternoon on Friday, July 26, 2013, the FAA announced that it was fining Boeing $2.75 million in civil penalties for allegedly failing to maintain its quality control system on its 777 airplanes.  FAA says that Boeing failed to implement plans for taking corrective actions to remedy certain nonconforming fasteners in a timely manner.  Boeing has 30 days from receipt of the FAA’s civil penalty letter to respond to the agency.  http://1.usa.gov/1brpSNp

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FAA Can Require Helicopters to Fly the North Route Along Long Island, D.C. Circuit Holds

On Friday, July 12, 2013, the U.S. Court of Appeals for the D.C. Circuit held that the Federal Aviation Administration could require that helicopters use a route one mile off the north shore of Long Island for the purpose of noise abatement in residential areas.  http://1.usa.gov/16E4xIH.  This brought the Helicopter Association International, Inc.’s petition for review of the FAA’s final rule requiring the usage of that route to a close.  http://1.usa.gov/12Bwe76.  In arriving at its holding, however, the Court made a couple of interesting rulings concerning the breadth of the FAA’s authority, as well as the evidence it can use to support its regulations, orders and findings.

Background

Prior to 2008, the Court explained, helicopters between New York City and eastern Long Island could use one of three routes to fly to their destination: along the north shore of Long Island; following the Long Island Expressway through the middle of the island; or along the southern shore of Long Island.  However, in 2008 the FAA developed the voluntary “North Shore Helicopter Route” (NSHR), which took helicopter traffic away from populated areas along the north shore by flying approximately a mile offshore.  In response to continued noise complaints, the FAA decided in 2010 to make the route mandatory. http://1.usa.gov/12SZqTM.  This led to the promulgation of the final rule in question.

A couple of peculiarities about this regulation should be pointed out.  First, although the FAA found that the residents “along the north shore of Long Island emphatically agreed that helicopter overflights during the summer months are unbearable and negatively impact their quality of life,” the FAA also found that the sound levels were below 45 DNL, the level at which the FAA has determined that homes are impacted.  Second, the mandatory use of the NSHR is provisional for two years.  This means that if the FAA determines that there is no meaningful improvement in noise levels, the rule will sunset.  If there is improvement, then the rule can become permanent after the proper notice and comment period.

FAA Can Alter Air Traffic Patterns to Reduce Noise Impacts

The HAI’s primary argument was a statutory one:  the FAA does not have the authority to alter air traffic patterns for the sole purpose of reducing the impact of aircraft noise on residential communities.  In essence, HAI argued that the FAA’s authority to alter air traffic patterns is limited to safety issues and that the FAA can only regulate noise through technology certification and in and around airports.  The FAA, on the other hand argued that it had the general authority under 49 U.S.C. 40103 to “prescribe air traffic regulations … [to] protect[] individuals and property on the ground.”  http://bit.ly/YBPE5p.  The Court concluded that the Congress “broad authorization to the FAA over the flight of aircraft to protect individuals and property” gives it the authority to promulgate protection from aircraft noise.

While the Court’s conclusion is a relative no-brainer, the FAA’s argument and the Court’s holding is interesting.  The FAA has long claimed that it has no authority over what happens on the ground.  This is particularly true of areas in and around airports and in regard to the FAA’s Part 77 obstruction analysis.  Yet now the FAA argued, and the Court upheld that argument, that the FAA has the authority to promulgate regulations that have the objective of protecting individuals and property on the ground from the effects of aviation.  The next question is whether the FAA has the responsibility (in addition to the authority) to “protect individuals and property on ground” even in cases where it is not in the economic best interest of the aviation industry.

FAA’s Conclusion Need Only Be Supported by Substantial Evidence Even If Contrary View Is Plausible

More interesting than the conclusion that the FAA has the authority to regulate air traffic patterns to combat noise, is the fact that the Court upheld the FAA’s use of anecdotal evidence to support its claim that the regulation was necessary to protect residents.  This conclusion was drawn despite a FAA commissioner study that showed that the noise levels were less than 45 DNL along the north shore of Long Island during the busiest helicopter traffic weekends.  This level is well below the 65 DNL threshold that the FAA uses to mark noise levels that are compatible with residential land use near airports.  The Court held that because there are no statutory or regulatory provisions setting 65 DNL as the minimum noise level that must be reached before the FAA can regulate the impact of aircraft noise, it serves “as a reference point from which the FAA can reasonably deviate when determining whether a particular noise reduction intervention is in the public interest.”    Thus, the FAA was free to base its regulation on the anecdotal evidence received from residents on the north shore of Long Island.

This conclusion comes as a bit of a surprise to residents below and near other helicopter routes, for example, in lower Manhattan, who have long complained about the noise generated by sightseeing helicopters, but have not been able to obtain any relief.  It also is a surprise to many residents under flight paths closer to airports who have been told that because the noise level is below 65 DNL, they are not impacted by aircraft noise.  The court, however, did give FAA an out for those cases by referencing that the FAA determines “whether a particular noise reduction intervention is in the public interest.”  In other words, it is within the FAA’s discretion to determine if the 65 DNL threshold should be applied or ignored.  And that discretion will carry with it the judicial deference that federal agencies receive in any subsequent litigation.

The silver lining is that for the first time a court has recognized that the people’s perception of aircraft noise may trump scientific evidence that the noise experienced by those people should not be “significant.”  If anything, this case emphasizes the importance of political action by groups opposed to aircraft noise – the residents of the north shore of Long Island made their voices heard and it was their voices that the FAA relied upon in making the NSHR mandatory.  Whether the FAA will give the same kind of consideration to residents closer to an airport with substantially less money and political influence is another story (and another case).

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