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The Federal Aviation Administration (“FAA”) reports that close calls between conventional aircraft and unmanned aircraft systems (“UAS” or “drones”) have increased during 2014 to more than 40 per month over earlier reports of 10 such incidents in the months of March and April.  Some of these incidents have occurred in the busy airspace surrounding Los Angeles, California, Washington, D.C., and John F. Kennedy Airport in New York.  Some of these conflicts have arisen because untrained operators of recreational drones are unaware of FAA’s guidelines governing such use.  Those guidelines ask, among other things, that “hobby” drones stay away from civil aviation, below 400 feet AGL, and at least 5 miles from airports.  However, as FAA prepares to release its highly anticipated Notice of Proposed Rulemaking for small unmanned aircraft systems, the focus is not on hobbyists, but on commercial operators.Continue Reading FAA Reports Increasing Conflict Between Drones and Civil Aviation

The decision of the Federal District Court for the Northern District of Idaho in SilverWing at Sandpoint, LLC v. Bonner County, a case that has been “hanging fire” for almost two years, was worth the wait.  On Friday, November 21, 2014, the Court granted Defendant Bonner County (“Bonner County”) summary judgment on all Plaintiff SilverWing at Sandpoint, LLC’s (“SilverWing”) federal claims for inverse condemnation, or “taking,” of private property by a public entity without just compensation, in violation of the 5th Amendment to the United States Constitution, and 42 U.S.C. § 1983, or violation of a plaintiff’s constitutional or other federal rights by a person acting under color of state law.  See, e.g., Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978).  In addition, the Court granted summary judgment on SilverWing’s state law contract claim for breach of the covenant of good faith and fair dealing.   

In this case, SilverWing claimed that Bonner County had taken its property by implementing a plan for the airport, an Airport Layout Plan (“ALP”) approved in accordance with the regulations promulgated by the Federal Aviation Administration (“FAA”), that showed the single runway at Sandpoint Airport moving 60 feet to the west, toward SilverWing’s property.  SilverWing argued that forcing the movement of a taxiway that already been constructed to service the “hangar homes” in the development, and thus causing it to incur upon the five lots closest to the runway, making them unbuildable, caused a loss to SilverWing of $26 million.  The Court ruled that implementation of the requirements of the ALP was a federal requirement arising out of federal responsibility for aviation safety and not within the discretion of Bonner County.  
 

Continue Reading Bonner County Wins Major Victory in Property Owner’s “Takings” Lawsuit

On November 7, 2014, the Federal Aviation Administration (“FAA”) published its “Final Policy Amendment” (“Amendment”) to its “Policy and Procedures Concerning the Use of Airport Revenue,” first published 15 years ago in the Federal Register at 64 Fed.Reg. 7696, February 16, 1999 (“Revenue Use Policy”).  The Amendment formally adopts FAA’s interpretation of the Federal requirements for use of revenue derived from taxes including sales taxes on aviation fuel imposed by both airport sponsors and governmental agencies, local and State, that are non-airport operators. 

In brief, the FAA concludes that “an airport operator or State government submitting an application under the Airport Improvement Program must provide assurance that revenues from State and local government taxes on aviation fuel will be used for certain aviation-related purposes.”  79 Fed.Reg. 66283.  Predictably, FAA received 25 substantive comments from a diverse group of interested parties, including airport operators, industry and nonprofit associations representing airports, air carriers, business aviation and airport service businesses, air carriers, state government agencies, and private citizens.  For example, in response to the airports’ and governments’ comments that airport sponsors would find it impossible to provide assurance that other governmental agencies would comply with the revenue use statutes for the life of the Airport Improvement Program (“AIP”) grant, and that airports should not be required to agree to a condition compliance with which they have no control, FAA takes the position that Federal statute 49 U.S.C. §§ 47107(b) and 47133 already require this level of control from local proprietors.  This is because “[t]he grant assurances provided by airport sponsors include Grant Assurance 25, which provides, in relevant part: ‘All revenues generated by the airport and any local taxes on aviation fuel established after December 30, 1987, will be expended by it for the capital or operating costs of the airport; the local airport system; or other facilities which are owned and operated by the owner and operator of the airport. . .’” 79 Fed.Reg. 66284.  The FAA further concludes that airport sponsors often have influence on the taxation of aviation activities in their States and localities, and the FAA expects airport sponsors to use that influence to shape State and non-sponsor local taxation to conform to these Federal laws.  Id.  Moreover, FAA asserts its power to pursue enforcement action against non-sponsor entities for the purposes of limiting the use of aviation tax revenues under 49 U.S.C. §§ 46301, 47133 and 47111(f). 
 

Continue Reading FAA Loosens Regulation of Taxes on Aviation Fuel

The Federal Aviation Administration (“FAA”) has scheduled six “briefings” with governmental jurisdictions potentially impacted by the planned “Southern California Optimization of Airspace and Procedures in the Metroplex (SoCal OAPM)” (“Project”).  The Project is expected to involve changes in aircraft flight paths and/or altitudes in areas surrounding Bob Hope (Burbank) Airport (BUR), Camarillo Airport (CMA), Gillespie Field (SEE), McClellan-Palomar Airport (Carlsbad) (CRQ), Montgomery Field (MYF), Los Angeles International Airport (LAX), Long Beach Airport (LGB), Point Magu Naval Air Station (NTD), North Island Naval Air Station (NZY), Ontario International Airport (ONT), Oxnard Airport (OXR), Palm Springs International Airport (PSP), San Diego International Airport (SAN), Santa Barbara Municipal Airport (SBA), Brown Field Municipal Airport (SDM), Santa Monica Municipal Airport (SMO), John Wayne-Orange County Airport (SNA), Jacqueline Cochran Regional Airport (TRM), Bermuda Dunes (UDD), Miramar Marine Corps Air Station (NKX) and Van Nuys Airport (VNY).   
 
These meetings are targeted at “key governmental officials/agencies” for the purpose of soliciting their views on the Environmental Assessment being prepared for the Project pursuant to the requirements of the National Environmental Policy Act, 42 U.S.C. 4321.  The meetings will not be open to the public, although public meetings will be scheduled as well.  
 
It is important to note the regional scope of the planned airspace changes, and that they may redistribute noise, air quality, and other impacts over affected communities, thus implicating new populations, and simultaneously raising citizen ire in newly impacted communities.  It is therefore doubly important that governmental entities participate at the initiation of the process to ensure protection at its culmination.  
 
The governmental meetings are planned for the following locations and times:
 

Continue Reading FAA Seeks Input from Governmental Entities Concerning Revised Air Traffic Routes Over Southern California

In a rare showing of unanimity between airport operator and noise impacted community, on September 30, 2014 the Board of Supervisors of Orange County, California (“Board”) approved the extension, for an additional 15 years, of a long-standing set of noise restrictions on the operation of John Wayne Airport (“Airport”), of which the Board is also the operator.  Those restrictions include: (1) limitation on the number of the noisiest aircraft that can operate at the Airport; (2) limitation on the number of passengers that can use the Airport annually; (3) limitation on the number of aircraft loading bridges; and, perhaps most important, (4) limitation on the hours of aircraft operation (10:00 p.m. to 7:00 a.m. on weekdays and 8:00 a.m. on Sundays).   

The restrictions were originally imposed in settlement of a lawsuit in 1986, between the Board, the neighboring City of Newport Beach and two environmental organizations, the Airport Working Group of Orange County, Inc. and Stop Polluting Our Newport.  The obvious question is whether similar restrictions might be achieved at other airports today. The not so obvious answer is that such a resolution is far more difficult now, but not impossible.
 

Continue Reading One Community Gets Relief from Aircraft Noise

In a landmark decision for the UAS (aka drone) industry and for the aviation industry as a whole, the Federal Aviation Administration announced today that it has granted 6 petitions for regulatory exemptions to operate unmanned aircraft systems for commercial filming operations.  The exemptions will allow the 6 petitioners to operate unmanned aircraft systems for…

The Federal Aviation Administration (“FAA”) has added another arrow to its quiver in its ongoing campaign to limit residential and commercial development in even the remotest vicinity of airports.  In late April, FAA originally published a “Proposal to Consider the Impact of One Engine Inoperative Procedures in Obstruction Evaluation Aeronautical Studies” (“Proposal”) which seeks to supplement existing procedures for analyzing the obstruction impact of new structures or modifications to existing structures on aircraft operations within certain distances around airports (see 14 C.F.R. Part 77), with consideration of the impact of structures on one engine inoperative (“OEI”) emergency procedures.  OEI procedures are not currently included in FAA’s obstruction regulations which advise local land use jurisdictions on appropriate limits to building heights within specified geographic zones around airports to accommodate the takeoff and landing clearance needed by aircraft with their full complement of operating engines.  From an aeronautical perspective, FAA’s initiative sounds desirable and long overdue, even though the occurrence of engine loss is rare.  From the perspective of local jurisdictions, landowners and developers, however, the proposal is anathema, potentially leading to dramatically lower allowable building heights and concomitantly reduced property values, even far from the airport. Continue Reading FAA Proposes to Increase its Authority Over Off-Airport Development