Recent Court Decisions Since April, 2008, Regarding Aviation and Airport Development Law

Here are a few court  decisions that have come down since April, 2008, regarding aviation and airport development law:

  1. Aerial Banners, Inc. v. F.A.A., 11th Circuit, Case No. 08-10042 (August 26, 2008). The Federal Aviation Administration grants waivers of certain regulations to businesses that tow advertising banners behind airplanes. Without the waiver, a business cannot conduct air towing operations because aerial towing is generally prohibited. See 14 C.F.R. § 91.311. Aerial Banners, as its name indicates, towed aerial banners for advertisers pursuant to a waiver. After a series of safety problems, including a couple of crashes, the FAA revoked Aerial Banners’ waiver, putting the company out of business. Aerial Banners has petitioned this court to set aside the FAA’s revocation claiming both substantive and procedural violations of the Administrative Procedure Act.  The Court held that the Company argument that it was not responsible for its pilots’ mishaps was unavailing.  In addition, the FAA had found the Company’s maintenance record seriously wanting.  Thus, the FAA had “reasonable” grounds for revoking the waiver.
  2. Flamingo Express v. F.A.A., 536 F.3d 561 (6th Cir. 2008). Airline petitioned for review of an order of the Federal Aviation Administration (FAA), which dismissed airline’s complaint against municipal owner of airport, alleging that it had violated its obligations under federal law by failing to approve airline’s application for permit to operate commuter air service and requiring airline to obtain unreasonably high liability insurance coverage. The Court of Appeals, held that municipal owner did not violate its federal obligations by refusing to approve airline’s permit for proposed commuter service, and that substantial evidence supported FAA determination that owner’s proposed $20 million liability insurance requirement was neither unreasonable nor unjustly discriminatory.
  3. Town of Winthrop v. F.A.A., 535 F.3d 1(1st Cir. 2008). Town and local residents filed petition for review of final order of Federal Aviation Administration (FAA) permitting construction of new taxiway at airport. Airport operator intervened. The Court  held that plaintiffs had standing to challenging FAA order; that  FAA’s failure to prepare supplemental EIS before giving its final approval to project was not arbitrary and capricious; and that FAA’s choice of modeling program for evaluating project’s noise impact was not arbitrary and capricious.Petition denied.
  4. Association of Citizens to Protect and Preserve the Environment of the Oak Grove Community v. FAA, Case No. 07-15675, 11th Circuit (July 16, 2008). The Association alleged that the FAA arbitrarily issued a Finding of No Significant Impact (“FONSI”) with respect to the proposed expansion project at the Troy Municipal Airport in Troy, Alabama. It also alleged that the FAA failed to follow its own regulations requiring additional review and approval of certain mitigation measures. On appeal, the Association maintains that the district court has jurisdiction over the first claim (the “FONSI claim”) because the FONSI is not a final order, and therefore, 49 U.S.C. § 46110(a) does not divest the district court of jurisdiction. The Association also argued the district court has jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 702, over its claim that the FAA failed to comply with its own regulations (the “procedural claim”). The Court held that the district court correctly determined that it lacked jurisdiction over both claims
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