No Appeal in Challenge to Naples (Florida) Airport Ban on Stage-2 Jets

OCTOBER 18, 2001

On Wednesday two aviation trade groups, National Business Aviation Association and General Aviation Manufacturers Association, dropped a lawsuit they had filed against the Naples (Florida) Airport Authority that alleged that the airport's ban on stage-2 jets was unconstitutional.

In August U.S. district court judge Gregory Presnell granted summary judgment in favor of Naples Airport in the case before it went to trial. The summary judgment prevents the NBAA and GAMA from suing again.

Presnell ruled that the trade groups did not prove their case challenging the constitutionality of the ban. He also ruled that the stage-2 ban satisfies all constitutional standards and is reasonable and not discriminatory. Both organizations had previously indicated that they planned to appeal that ruling.

Stage-2 jets were made primarily between 1975 and 1983 and are noisier than jets made after that time. The airport banned the aircraft because airport officials believe stage-2 jets contribute to noise problems in and around the airport.

Jeff Gilley, NBAA manager of airport operations, said the decision to drop the appeal was made because the NBAA wanted to focus on other issues. "The decision was based on what our priorities are after Sept. 11," Gilley said, referring to the terrorist attacks in New York and Washington.

GAMA spokeswoman Shelly Simi said the organization had decided it was not in its best interest to continue pursuing the lawsuit. "It doesn't mean we agree with the decision but we're not going to pursue the appeal," Simi said. "We're hopeful that the (Federal Aviation Administration) will step in and take action on this situation." The FAA has previously indicated that it has problems with the stage-2 jet ban.

Airport Authority Chairman Eric West said he was glad to have the lawsuit concluded. "To say we are pleased is an understatement," West said. "The court agreed with us that local communities have a right to decide what is in their best interests as long as they are not in violation of the law."

NBAA, a trade group that represents about 6,400 corporate members who fly in connection with their primary businesses, had sought a permanent injunction that would prohibit the city airport from enforcing the stage-2 jet ban. GAMA joined the lawsuit after NBAA filed. GAMA is a national trade association that represents more than 50 U.S. manufacturers of fixed-wing general aviation aircraft, engines, avionics and component parts.

The decision not to pursue the lawsuit clears the way for Naples Airport to enforce the jet ban, which has been in place for over a year but hasn't been enforced. Airport Authority Executive Director Ted Soliday said the airport expected to begin enforcement of the ban in March.

Naples airport officials said stage-2 jets make up less than 1 percent of the aircraft that fly out of the airport but are responsible for more than 40 percent of the noise complaints filed by local residents.

While the airport has survived the legal challenge it could still face problems from the FAA in enforcing the ban. When the Airport Authority conducted the noise study that recommended the stage-2 jet ban, it used a 60 decibel noise level. The FAA uses a 65 decibel noise level and the NBAA suggested the noise study was illegitimate because it didn't follow the standards of the federal government.

The authority is free to use 60 decibels but has to provide evidence and an explanation of why it used the lower level. The authority didn't do that, said Lynne Pickard, manager of the FAA's community and environmental needs division. The study also didn't include an examination of nonrestrictive ways to reduce airport noise, such as noise barriers, land purchases and voluntary curfews, FAA officials said.

The FAA doesn't have to approve the stage-2 jet ban but it does have to rule that the Airport Authority followed proper procedures in instituting the ban. The FAA has said the authority didn't follow proper procedures.

But the FAA may have trouble defending its position because Presnell ruled that the airport had the right to use 60 decibels because there is no language in federal statutes or regulations indicating that using 60 decibels is forbidden.

In August the authority approved a $102,500 scope of services study that it believes takes care of all the issues the FAA cited. But the federal agency hasn't yet said whether the scope of services study addressed all of its concerns. FAA officials say they are reviewing the scope of services study but have not said when they would respond to it. Soliday said he is hoping to hear from the FAA sometime in October. The Airport Authority is having a public comment period on the scope of services study until the end of the month.

The FAA also claims that the airport is being discriminatory by banning stage- 2 jets and will lose its ability to get federal grants if it goes forward. Federal law prohibits awarding government grants to organizations or groups that discriminate. But Presnell's ruling is likely to also make it more difficult for the FAA to make that argument because the federal judge ruled the ban was not discriminatory.

The airport is now going through a 180-day notification period for the scope-of-services report. That notification period started in September and will be completed in March.

Soliday said the airport plans to start enforcing the ban in March even if the FAA doesn't respond to the scope-of-services report because it believes the correct federal procedures were followed.

Source: Naples Daily News