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Fundamentals I: Introduction to Airport Law
Session 1 Catherine M. van Heuven
Kaplan Kirsch & Rockwell
Nicholas M. Clabbers
Kaplan Kirsch & Rockwell
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AIRPORT LAW TOUCHES EVERYTHING
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Everything the light touches is ours
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I PRACTICE AIRPORT LAW!
Regulatory Compliance
Preemption
Real Estate
Administrative
Environmental
Land Use
Bonds
Open Records
Counselor
Negotiator
Mediator
Litigator
Therapist
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AIRPORT LAW THROUGH A TRAVELER’S EYES
MOOOOOOM, I’M HUNGRY
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GETTING TO THE AIRPORT
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ARRIVING AT THE TERMINAL
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CHECKING IN
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SECURITY CHECK
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MOOOOOOM, I’M HUNGRY
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PREPARE FOR TAKEOFF…
…AND HOPE FOR A SMOOTH FLIGHT
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LEARNING THE LAW
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▪ Constitution*
▪ Formal federal sources▪ Statutes
▪ Federal Aviation Regulations (14 CFR)
▪ Adjudications (Part 16)
▪ Local sources▪ Minimum Standards
▪ Rules and Regulations
▪ Airport Policies
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WHERE’S THE LAW?
▪ Federal guidance and policy ▪ FAA Orders
▪ Advisory Circulars
▪ Policy Statements
▪ Program Guidance Letters (PGLs)
▪ Standard Operating Procedures (SOPs)
▪ TSA Security Directives
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WHERE’S THE LAW?
▪ FAA Advisory Circularshttps://www.faa.gov/airports/resources/advisory_circulars/
▪ FAA Airport Division Ordershttps://www.faa.gov/airports/resources/publications/orders/
▪ FAA SOPshttps://www.faa.gov/airports/resources/sops/
▪ TSA Security Directives (difficult to find!)
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NO REALLY, WHERE IS THE LAW?
▪ FAA Website https://www.faa.gov/airports/airport_compliance/
▪ LEXIS, Westlaw▪ But beware that these may be incomplete
▪ FAA Part 16 database
▪ TRB/ACRP▪ ACRP Legal Research Digest 21 – sortable FAA decisions
https://crp.trb.org/acrplrd21/
▪ ACRP Website Search
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OTHER USEFUL TOOLS
▪ Operation of national aviation system is a “cooperative scheme”▪ FAA (aircraft and airspace)
▪ Airports (ground operations; airport operations)
▪ Congress has preserved “proprietary powers and rights” of airport operators (not police powers)
▪ Jurisprudence has evolved in the last 100 years▪ Few bright lines
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PREEMPTION
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PREEMPTION
Non operational matters
Off airport land use
Local health/safety
Operational restrictions
Airfield regulations
Certain financial matters
Aircraft in flight
Aircraft certification
Pilot certification
Express
preemption
Implied / conflict preemption
No preemption
BUT WAIT, THERE’SMORE
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Grant Assurances
Deeds(Surplus Property Act)
Part 139 regulations (commercial airports)
Revenue Use Policy
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GRANTS
▪ Grant Assurances▪ 39 separate requirements
▪ Legally binding by contract
▪ Principal issues▪ Assurance 5 – rights and powers
▪ Assurance 22 – economic nondiscrimination
▪ Assurance 23 – exclusive rights
▪ Assurance 24 – fee and rental structure
▪ Assurance 25 – airport revenue
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GRANT ASSURANCES
▪ Contractual, not regulatory
▪ But Congressionally mandated
▪ Some independently set by statute
▪ 20-year duration▪ Clock resets at each grant
▪ FAA gets to enforce▪ Prosecutor, judge, jury, executioner
▪ Court review only after FAA decision
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GRANT ASSURANCES
▪ Focus is on current compliance, not generally punitive action▪ Generally ADO or region
▪ Adjudication of grievances▪ Part 16 for grant assurances
▪ Part 13 for informal grievances
▪ Occasionally, rarely, court
▪ Penalties; corrective action▪ Negotiated
▪ Exclusive jurisdiction in US Ct. Appeals (49 U.S.C. § 46110)
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A WORD ON ENFORCEMENT
▪ Surplus Property Act▪ Many of same restrictions as grant
assurances
▪ Perpetual (no 20-year limitation)
▪ Makes real estate sale difficult
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DEEDS
▪ Requires airport operating certificates for airports that have:▪ Scheduled and unscheduled operations; aircraft with more than 30
seats
▪ Scheduled operations; more than nine seats but less than 31 seats
▪ Part 139 inspection▪ Administrative inspection of airport files, paperwork, etc.
▪ Facilities inspection
▪ Post inspection briefing with airport management
▪ Far less regulation of general aviation airports
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PART 139 REGULATIONS(commercial airports)
REVENUE USE
▪ Federal statute prohibits “diversion” of revenue at airport that has been grant obligated since 1996
▪ Prohibition against revenue diversion is perpetual
▪ Very complex definitions
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LEARNING THE LANGUAGE
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Airport
Property• “Aeronautical”
• “Non-Aeronautical”
CRITICAL AIRPORT TERMINOLOGY
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“Airside”• Airport
Operations Area
(AOA)
• Security
Identification
Display Area
(SIDA)
“Landside”
CRITICAL AIRPORT TERMINOLOGY
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CRITICAL AIRPORT TERMINOLOGY
↙Runway 22
↗Runway 4
Runway 4/22
Source: By Orion 8 - Own work, CC BY-SA 3.0
https://commons.wikimedia.org/w/index.php?curid=28151549
Air Traffic
(ATO)
Airports Safety Space
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UNDERSTANDING AND WORKING WITH FAA
FAA AIRPORTS DIVISION
▪ Airport safety, inspections, standards, airport design, construction, and operation
▪ Airport Improvement Program (AIP) grants
▪ Passenger facility charges (PFCs) approvals
▪ National airport planning and environmental requirements
▪ Policies on rates and charges, compliance with grant assurances, and privatization
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Associate
Administrator
Shannetta Griffin
Director of Airport Policy
Elliott Black
(Long Term Detail)Compliance /
Management
Analysis
Kevin Willis
Deputy Assoc
Admin
Winsome Lenfert
Safety / Standards
John Dermody
Airport Planning /
Programming
Bob Craven
Office of Chief
CounselMark Bury
(acting)
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FAA Regions▪ Regional office
▪ Airports District Office (ADO)
DEALING WITH FAA
▪ Agency is huge; airports function is not!
▪ Airports District Office (ADO) is first point of contact
▪ Don’t be afraid to call!
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Funder
Regulator
Adjudicator Advocate
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STAKEHOLDERS
Local
Govt’sFAA
NeighborsGeneral
Aviation
Non-
aeronautical
Users
Concessions Tenants Utilities
Ground
Access
Providers
Developers
StateFBOs
Airlines
Air Traffic
▪ Airports have an unlimited supply of money.
▪ Airports are just like other local government functions.
▪ The federal government only regulates money and aircraft.
▪ We can do whatever we want with our airport.
▪ Airports only exist to serve _______.
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COMMON MISTAKES
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Review the
Airport
Design
Advisory
Circular
ATTORNEY ADVERTISEMENT. The contents of this presentation, current at the date of publication, are for reference purposes only and do not constitute legal advice. The contents
do not reflect the official opinion of Kaplan Kirsch & Rockwell LLP. Responsibility for the information and views expressed within this document lies entirely with the author(s).
© 2021 Kaplan Kirsch & Rockwell LLP
QUESTIONS?
Katie van Heuven
Kaplan Kirsch & Rockwell
Nick Clabbers
Kaplan Kirsch & Rockwell
