V. Whether The NAA’s Ban On Stage 2 Aircraft Is Consistent With Its Statutory And Contractual Obligation To Make Its Airport Available For Public Use Without Unjust Discrimination To All Types, Kinds, And Classes Of Aeronautical Activities

The same Grant Assurance which requires that a federally obligated airport sponsor make its airport be made available “without unjust discrimination to all types, kinds and classes of aeronautical activities offering services to the public at the airport.” [143]

The initial inquiry as it pertains to the Stage 2 ban at the Naples Municipal Airport revolves around the ban’s scope. Resolution #2000-7, adopted June 22, 2000, is titled, “Inviting Public Comment on A Proposed Restriction on Stage 2 Jet Operations at the Naples Municipal Airport.” [144] However, the text of this Resolution, including the specific language for the ban, refers to “all aircraft certificated as meeting Stage 2 noise limits.” Likewise, Resolution #2000-8, adopted November 16, 2000, is titled, “Adopting a Restriction on Stage 2 Jet Operations at the Naples Municipal Airport,” while the text of the Resolution again uses the broader word “aircraft” in describing the ban. [145] The Part 161 Supplemental Analysis refers to a ban on Stage 2 jets throughout the report. [146] The FAA points out that in the FAA Airport Facility Directory, the NAA advises that “Stage 1 and 2 jet” aircraft operations are prohibited from using APF [147] , and that the NAA officials have been quoted as stating that the Airport prohibits all Stage 2 jets. [148] Mr. Soliday testified that he had never seen a Stage 2 propeller aircraft at APF, and that he been unaware that any such aircraft existed. However, he agreed that the ban would not prohibit them from landing at APF, [149, 150] and the NAA does not dispute that regardless of its wording, the ban is limited to Stage 2 jets.

The FAA, as well as the courts, closely examine access restrictions which deny access to specific types or categories of aircraft. Such restrictions, if improperly drawn, may result in unjust discrimination if they appear to be based upon criteria other than aircraft noise. An FAA determination that an aircraft restriction resulted in unjust discrimination in violation of the grant assurances was affirmed in City and County of San Francisco v. FAA, 942 F.2d 1391 (9th Cir. 1991). In that case, the airport’s noise regulation allowed aircraft that were equally noisy or noisier than the aircraft being restricted to use the airport and increase in number without limit, while excluding the retrofitted Boeing Q707’s based upon their date of type-certification as meeting Stage 2 requirements. The Court noted the “limited role” reserved for airport proprietors in regulating noise at their airports, and that this limited power must be exercised in a nonarbitrary, reasonable, and nondiscriminatory manner. Id., at 1394-1395, citing Santa Monica Airport Association v. City of Santa Monica, 659 F.2d 100, 104 (9th Cir. 1981); British Airways v. Port Authority of New York (Concorde I), 558 F.2d 75, 84 (2nd Cir. 1977); British Airways v. Port Authority of New York (Concorde II), 564 F.2d 1002, 1011 (2nd Cir. 1977).

The Court in San Francisco examined the airport’s grant agreement and found that it “is not an ordinary contract, but part of a procedure mandated by Congress to assure federal funds are disbursed in accordance with Congress’ will”. 942 F.2d, at 1396. The Court affirmed the FAA’s determination that by banning an aircraft type on a basis other than noise, the airport violated the provision in its grant agreement which prohibits unjust discrimination. The Court recognized that the Q707 was “admittedly a noisy aircraft”, but nevertheless rested its conclusion on the fact that the airport’s restriction was discriminatory. [151]

Initially, I do not find that a ban restricted to Stage 2 jets, as opposed to all Stage 2 aircraft, is per se discriminatory, nor do I perceive the FAA as taking this position. The FAA has stated that it does not consider the use of Stage classifications per se to be unjustly discriminatory. [152] Rather, the burden of proof is on the FAA to establish that there are, in fact, aircraft which are noisier than the banned Stage 2 jets, and if so, that their ability to use APF warrants a finding of unjust discrimination. [153]

The FAA cites two examples of aircraft which it contends can use APF, but which are noisier than some of the jets which cannot. In particular, the FAA asserts that the cumulative certificated noise value for a non-jet Stage 2 Fokker 27 Mk500 is higher than the value for both the Stage 2 Learjet 24F-A and Lockheed Jetstar 1329-23, and that the estimated A-weighted takeoff noise level for the non-Stage DC-3 is higher (85 dBA) than that of the Stage 2 Sabreliner 75A (at 77.7 dBA). [154, 155] NAA disputes these findings by questioning the validity of the agency’s methodology, [156] and indeed there appears to be a fair degree of controversy surrounding the measurement of aircraft noise. Mr. Thomas Connor, the primary FAA witness who provided these data in his testimony, has been the Noise Division Manager in the Office of Environment and Energy (AEE) since 1992, and has been involved with aviation noise issues for about 30 years. His Division is responsible for the aircraft noise standards and certification procedures that are contained in Part 36, as well as for the development and maintenance of the Integrated Noise Model (INM). He served as the FAA representative on the technical working group under the Federal Interagency Committee on Noise (FICON), and was the first chairman of the Federal Interagency Committee on Aviation Noise (FICAN) where he still represents the FAA. In addition, since 1996 he has served as chairman of the Working Group on Aircraft Noise for the International Civil Aviation Organization. [157] He explained the basis for his calculations, noting that he made his computations several different ways because there is not a standard methodology. [158]

Mr. Edward M. Baldwin, 3rd, is Senior Vice President and Principal Consultant of HMMH, where he has worked since 1984. He has extensive experience in working with airports on aircraft noise issues, and he worked with the NAA on its earlier Part 150 studies and the Part 161 Study. [159] Mr. Baldwin reviewed the Director’s Determination and the FAA’s interrogatories on the question of unjust discrimination. It was his opinion that the calculations offered by the agency and in particular, by Mr. Connor were subject to challenge from technical perspectives and had no basis in the federal regulations. [160] However, Mr. Baldwin did not elaborate on his objections to Mr. Connor’s figures, nor did he offer an alternative method to determine aircraft noise. In addition, he did not directly contradict Mr. Connor’s conclusions that the DC-3 and F27 are noisier aircraft than the banned Stage 2 jets referenced above. Upon review of all of the evidence on this issue, I find persuasive Mr. Connor’s conclusions regarding the relative noise levels of the aircraft noted in his testimony.

The NAA has argued that distinctions between stages of aircraft are well established in the regulation of aviation noise, and that it is permitted to use stage classifications in establishing access restrictions without having to compare noise values for individual aircraft. The FAA challenges this conclusion, asserting that stage classifications for regulatory purposes would not justify a noise restriction which allows for noisier aircraft to use an airport. However, it is not necessary to reach this issue, because regardless of its resolution the evidence does not support a finding of unjust discrimination. [161]

The fact that some aircraft exist which are noisier than the banned Stage 2 jets and which are allowed to use APF does not end the inquiry. As the FAA has stated, an examination is needed of the specific circumstances at the airport under investigation. [162] Looking at the DC-3 first, the NAA contends that there are no DC-3’s which operate at APF. [163] The Part 161 Supplemental Analysis does not show any DC-3’s using the Airport in 2005, [164] although it appears that there may have been government-operated DC-3’s using the Airport in connection with mosquito control efforts. Peter Stumpp, vice-president of Simat, Helliesen & Eichner, an aviation consulting firm which participated in the Part 161 Study on behalf of the NAA, testified that in 2000, there were about 2.65 daily operations of the DC-3, but that “virtually all such operations are by a government agency engaged in mosquito control and are exempt from the ban. [165, 166] There is no convincing evidence as to how often, if at all, non-exempt DC-3 aircraft used APF at the time of the ban’s implementation in March 2002. Regarding the F27, there is no evidence that these aircraft have operated in APF or that they are expected to operate at the Airport in the foreseeable future. [167] Absent persuasive evidence that the two aircraft which are noisier than the banned Stage 2 jets have used the Airport since the ban’s implementation or are likely to do so in the foreseeable future, a finding of unjust discrimination is not supported. [168]

Accordingly, I find that the NAA’s Stage 2 ban is consistent with its statutory and contractual obligation to make its airport available for pubic use without unjust discrimination to all types, kinds, and classes of aeronautical activities.

_______________________
Perry A. Kupietz
Hearing Officer

Pursuant to 14 C.F.R. Section 16.241(b), a party adversely affected by this initial decision may file an appeal with the Associate Administrator within 15 days of the date the initial decision is issued. In this case an appeal would be due no later than July 15, 2003. Each party may file a reply to an appeal within 10 days after it is served on the party. Filing and service of appeals and replies shall be by personal delivery.

The Associate Administrator’s final agency decision is due no later than August 25, 2003.

Footnotes:

1. Soliday direct, at ¶6,7; DD-Item 5.

2. References to the witnesses’ written direct or written rebuttal testimony will be described as “witness name- direct or rebuttal- and the page or paragraph number.” References to the cross examination will be to the transcript page, described as “TR-.” Exhibits which were part of the administrative record relied upon by the Director in issuing his Determination will be identified as “DD” followed by its identification number listed in the Index of the Administrative Record. All references in this Initial Decision will be to FAA Exhibit 1 of this Index. The exhibits which were introduced by the parties at the hearing will be identified as “NAA exhibit...” or “FAA exhibit…”

3. NAA exhibit 17; Vasconcelos direct, at 7.

4. DD-Item 5; Vasconcelos direct, at 7.

5. DD-Item 6.

6. The Aviation Safety and Noise Abatement Act (ASNA), 49 U.S.C. 47501 et seq., authorizes the FAA to provide grants to sponsors to fund the voluntary development of comprehensive noise compatibility plans, including the preparation of noise exposure maps, soundproofing, land acquisition, and other projects to carry out the airport’s noise compatibility program. The FAA promulgated 14 C.F.R. Part 150 to implement ASNA. See Bennett direct, at 9-10; Catlett direct, at 8-9; DD-Item 40, Aviation Noise Abatement Policy (draft), at 43809-43813.

7. See, in general, NAA exhibit 4; DD-Item 2, Attachments 26-32; Catlett direct, at 9-12.

8. Catlett direct, at 9-10; DD-Item 2, Attachment 26; Attachment 3, at 11-14.

9. DD-Item 2, Attachments 28, 29; Catlett direct, at 10-11.

10. DD-Item 2, Attachment 29.

11. Id.

12. Id.

13. DD-Item 2, Attachment 31; Attachment 3, at 11-14; Catlett direct, at 11.

14. DD-Item 2, Attachment 31.

15. DD-Item 2, Attachment 6, p. 14.

16. Id.

17. DD-Item 2, Attachment 2.

18. The ban affected Stage 2 aircraft under 75,000 pounds, as all Stage 2 aircraft above this weight were required to comply with Stage 3 noise levels by December 31, 1999. In addition, the ban included provisions allowing for temporary waivers.

19. DD-Item 2, Attachment 3.

20. Id.; June 26, 2000 cover letter from HMMH.

21. DD-Item 19, Catlett direct, at 17-18.

22. Id.

23. DD-Item 19.

24. Id.

25. DD-Item 22.

26. DD-Item 2, Attachment 9; LeBlanc-Hutchings direct, at para 21.

27. DD-Item 19; Catlett direct, at 18-19; TR-22-23; LeBlanc-Hutchings direct at para 22.

28. DD-Item 2, Attachment 11.

29. DD-Item 19, letters of January 31 and February 16, 2001.

30. DD-Item 22.

31. LeBlanc-Hutchings direct, at para 23; DD-Item 22 (Soliday letter of March 19, 2001).

32. DD-Item 2, Attachment 15; LeBlanc-Hutchings direct, at ¶ 25.

33. DD-Item2, Attachment 15, at 3; Appendix F-2.

34. Id., at 3.

35. Id., at 21, Figure 2.1; Appendix F-2.

36. LeBlanc direct, at ¶24.

37. DD-Item 1; Catlett direct at 2-4; TR-24.

38. DD-Iem 1.

39. The NOI also raised the issue of exclusive rights under Grant Assurance 23 and 49 USC 47107(a)(4). However, the issue of exclusive rights was not resolved in the Director’s Determination and was not part of the hearing in this matter.

40. DD-Item 2.

41. Petitions submitted by Michael R. Wood; the City of Scottsdale; the Board of Commissioners for Pitkin County, Colorado; the Florida Airports Council; Quiet Technology Aerospace, Inc., (QTA); and the National Organization to Insure a Sound-Controlled Environment (NOISE), were denied.

42. The arguments made by all participants, although not specifically referenced, were considered in this Initial Decision.

43. Prior to the hearing, the Hearing Officer granted, in part, the NAA’s motion for the presentation of oral direct testimony by Dr. David Dubbink.

44. The NAA also urges that the Hearing Officer dismiss this matter by finding that the Director’s Determination is a substantive rule requiring notice and comment pursuant to Section 553 of the Administrative Procedure Act. The FAA asserts that this issue is not properly before the Hearing Officer. The FAA also argues in opposition to this basis for dismissal. I do not need to reach the merits of this issue, because I agree with the agency that this issue is not properly before me. Pursuant to 14 C.F.R. Section 16.201, the FAA Deputy Chief Counsel identifies the issues to be addressed. Although the Hearing Officer can resolve motions and other procedural matters necessary for the conduct of the hearing, the issue presented by the NAA goes directly to the validity of the Director’s Determination and is beyond the scope of the issues assigned to me to address.

[Editor's note: footnote numbers 45 and 46 are missing in the original document.]

47. The concept of privity has been used in cases involving issue preclusion as well as claim preclusion. The analysis of this term does not appear to depend upon the type of preclusion at issue.(see p.14 for text ref.; footnotes 45, 46 omitted.)

48. See also Tice v. American Airlines, 162 F.3d 966 (7 th Cir. 1998), reviewing the history of the terms “privity” and “virtual representation” and commenting that “virtual representation” probably doesn’t add anything new to the law of preclusion that is not already captured by a flexible inquiry into the concept of privity.

49. As privity has not been established, there is no need to discuss the other elements of res judicata. However, I also find that the same cause of action is not present in NBAA and this Part 16 proceeding. Contrary to the NAA’s claim, the primary rights and duties of NBAA and the FAA are not the same, for the reasons noted above. c.f. Jaffree, supra.

50. The Court also noted that the relief provided by the Board was substantially identical to that which was denied by the Court. In this case the Director, having determined that there was a violation of the NAA’s grant assurances, found that the NAA was ineligible for additional grant money. The outcome of this proceeding will have an immediate impact on the NAA’s receipt of future grant money- an issue clearly not before the NBAA Court.

51. The Hearing Officer also notes that the fourth element for res judicata described in I.A. Durbin -- the same cause of action -- is also lacking in this case. This finding is based upon the facts that (1) the FAA, as described herein, was not party to the court case nor was it in privity with NBAA; and (2) the issues presented by the Director’s Determination -- the grant compliance issues and the extent of the propriety exemption -- were not presented to the Court. Under these circumstances, although both proceedings obviously involve the Stage 2 ban, they involve different rights and duties and would give rise to different remedies. Accordingly, they do not constitute the same causes of action.

52. ANCA, and in particular its relationship with an airport’s grant assurances will be discussed more fully, infra.

53. Participation of an airport sponsor in a Part 150 study and its development of a noise compatibility program under this Part are voluntary.

54. In view of its holding that there was no room for local curfews or other local controls, the Court stated that the remedy for aircraft noise was not known. Burbank, at 638.

55. In rejecting plaintiffs’ argument, the court described Griggs liability as limited to Fifth Amendment takings.

56. NAA post-hearing brief, at 13.

57. The NAA states that Constitutional protections would apply to access restrictions. NAA post-hearing brief, at 9.

58. 49 U.S.C. §47524(b); 14 C.F.R. Subpart C.

59. 49 U.S.C. §47524(c); 14 C.F.R. §161.317.

60. After an opportunity for public comment, the FAA determined to apply Section 47524(b) (formerly Section 9304) to Stage 2 aircraft under 75,000 pounds, and to require separate details on the costs and benefits of a proposed restriction.

61. 56 Fed. Reg. 48662.

62. Id., at 48647.

63. Id., at 48649.

64. The FAA also cites to an April 1, 1991 letter from FAA Administrator James Busey to Senator Lautenberg, stating that, “except for the specific responsibilities imposed on airports proprietors by [ANCA], that legislation did not change previous substantive legal requirements affecting the authority of airport proprietors limit Stage 2 aircraft operations to control noise”. 138 Cong. Rec. L5880 (April 30, 1992).

65. NAA makes the same argument with regard to the FAA’s position.

66. DD-Item 19, August 21, 2000 letter, p.5.

67. Id, September 18, 2000 letter, p.1

68. Id., December 27, 2000 letter.

69. Id., February 16, 2001 letter from Mr. Bennett.

70. Id., March 14, 2001 letter from Mr. Galis.

71. I have reviewed the legislative history which both parties have cited, but do not find that it is dispositive of this issue.

72. DD-Item 2, Attachment 29.

73. DD-Item 2, Attachment 3.

74. DD-Item 2, Attachment 3, at 1 (Introduction and Executive Summary).

75. Id., at 3, 16.

76. Id.

77. Id., at 79 78 DD-Item 19.

79. DD-Item 2, Attachment 15, at 1.

80. DD-Item 19.

81. DD-Item 1(NOI from David L. Bennett).

82. Director’s Determination, at 93 ; see also Bennett direct, at 15.

83. DD-Item 6.

84. Bennett direct, at 4; FAA exhibit 3 (Order 5190.6A) at ¶ 2-2.

85. Id., at 8-9; FAA exhibit 3.

86. FAA exhibit 3, Section 4-8(f). p. 18.

87. Bennett direct, at 8-9, 15.

88. 49 U.S.C. § 47502.

89. 14 C.F.R. § 150.9(b); id., App. A, Table 1.

90. 14 C.F.R. §150, App.B, Section 150.7(b).

91. Bennett direct, at 9-10; 49 Fed. Reg. 49260, 49263-49264 (1984).

92. DD-Item 2, Attachment 15, at 3.

93. Director’s Determination, at 56.

94. Id.

95. Bennett direct, at 16.

96. Director’s Determination, at 57.

97. 56 Fed. Reg. 48669 (1991).

98. DD-Item 2, Attachment 18(Plaintiff’s Motion for Summary Judgment), at 9.

99. 14 C.F.R. Part 150, App. 1, Table 1.

100. Connor direct at 4; rebuttal to Fidell; Part 150, App.1, Table 1; DD-Item 23; preamble to Part 161, at 56 Fed. Reg.

101. 14 C.F.R. §150.7; DD-Item 36; Baldwin direct, at ¶7; Director’s Determination, p. 2, n.1.

102. DD-Item 2, Attachment 3, at 15.

103. DD-Item 2, Attachment 15, at 1, 2.

104. Id., at 9.

105. Catlett rebuttal to Soliday, at ¶4; TR-41-50.

106. I concur with the Director’s Determination that the subsequent ordinance, No. 02-9648, is essentially immaterial to this case, as it was enacted on June 5, 2002, after the ban was implemented and the DNL 60 dB contour contracted. Further, this ordinance would still permit transient lodging, which under Part 150 constitutes a residential use.

107. TR-536-537.

108. Collier post-hearing brief, at 8.

109. Id., at 10.

110. DD-Item 19, January 30, 2001 letter from Galis.

111. DD-Item 2, Attachment 15, p. 11

112. The inquiry here is not simply whether someone can walk into a courthouse and file a complaint, as the Airport cannot impose an aircraft restriction to avoid even frivolous lawsuits.

113. West direct, at ¶¶ 7-15.

114. Id.

115. TR-524. The estimated year 2005 population of the Campground is 144. See DD-Item 2, Attachment 15, at Appendix F-3. The year 2000 population is listed as 176. See DD-Item 3, Appendix B.

116. Soliday rebuttal, ¶¶ 23-26.

117. TR-534-535, 543; Director’s Determination at 67, Figure 1.

118. Director’s Determination, at 67, Figure 1.

119. TR-530, 532.

120. TR-532.

121. TR-541; see also Vasconcelos direct, at 22.

122. DD-Item 19, January 30, 2001 letter from Paul L. Galis.

123. Soliday direct at ¶¶12, 13.

124. DD-Item 2, Attachment 15, at 3; Attachment 3, Appendix D.

125. TR-391-413, 440.

126. Regarding other factors referenced in the Supplemental Analysis regarding the nature of the Naples area, there is no evidence that it is substantially different from other resort-type communities -- whether in Florida, the South, or even in the North, where outdoor activities may be as popular in the summer as they are in the winter in Naples.

127. DD-Item 8; Vasconcelos direct, at 9-10.

128. TR-405.

129. DD-Item 8.

130. DD-Item 2, Attachment 6, tab 13.

131. At the same time, given its challenge to the validity of complaint data, the absence of significant complaints from within the DNL60 contour does not support the FAA’s violation charge.

132. Director’s Determination, at 67, Figure 1.

133. Connor direct, at 5; rebuttal to Fidell; DD-Item 21 (FICON 1992).

134. Connor direct, at 6-7; rebuttal to Baldwin, at ¶¶ 5-8; rebuttal to TR-73-77.

135. 14 C.F.R. Part 150.

136. Director’s Determination, at 74-86.

137. 61 Fed. Reg. 48727 (September 6, 1996); see also Bennett direct, at 19.

138. The residents of the Bayfront development purchased this property around 2000-2001, although the approval for the project had been given several years earlier.

139. DD-Item 34, Appendix 6.

140. Baldwin direct, at ¶¶ 41, 46.

141. TR-478-481; Baldwin direct, at ¶ 47.

142. Bennett rebuttal to Stumpp and Samis, at ¶ 7.

143. FAA exhibit 3 (FAA Order 5190.6(A)), at §4-8(f); 49 U.S.C. §47107(d), prohibiting unjust discriminatory practices in the carrying out of the airport and airways programs, including the airport grant program.

144. DD-Item 2, Attachment 2.

145. DD-Item 2, Attachment 9.

146. DD-Item 2, Attachment 15.

147. Director’s Determination, at 9, fn. 46.

148. DD, at 9.

149. TR-429.

150. In all of the correspondence and pleadings from NAA over the course of the FAA’s investigation and hearing, the Airport Authority has never disputed that the scope of the ban, as implemented pertains to Stage 2 jets.

151. ANCA was passed after the conclusion of the agency’s administrative proceedings. Accordingly, neither the FAA nor the Court considered it in this case. 942 F.2d, at 1395, n.2.

152. DD, at p. 91; DD-Exhibit 1, Item 31.

153. I reject the FAA’s general allegation that there are other noisy aircraft at APF, including helicopters, and that their ability to use the Airport results in unjust discrimination against the banned aircraft.

154. [Editor's note: No text for FN 154 in the original.]

155. Connor direct, at 7-8; Connor rebuttal to Baldwin, at 1-4; TR-81-99; Vasconelos direct, at 37; NAA Exhibit 15, at 28-31.

156. Baldwin direct, at ¶¶ 56, 57.

157. Connor direct, at 1; Connor rebuttals to Fidell and Baldwin, at 1.

158. TR-96-97.

159. Baldwin direct, at ¶¶ 1-5.

160. Id., at ¶ 56.

161. The NAA ban provides an exemption for government aircraft.

162. Director’s Determination, at 91.

163. TR-427; Stump direct, at ¶ 48.

164. DD-Item 2, Attachment 15.

165. Stumpp direct, at ¶ 48.

166. Mr. Soliday had a different perspective, stating that DC-3 are not currently operating at APF, adding that except for one DC-3 on an emergency flight, he has not seen this aircraft at APF since. However, it was possible that Mr. Soliday was distinguishing between commercial and government operations. TR-426-427.

167. Stumpp direct, at ¶ 47.

168. Although there was some testimony regarding the BAe-748, neither the Director’s Determination nor Mr. Connor’s testimony was based upon this aircraft. In any event, there is no evidence that the BAe-748 fly into APF, and according to Mr. Stumpp, the FAA Registry does not include any of these aircraft. See Stumpp direct, at ¶ 47.