Legal Aspects of Airport Programs - An Update (2017)

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2 ACRP Project 11-01 panel members include attor- neys who work at airports or provide counsel to air- ports, those who represent a municipality that owns/ operates an airport, or those who are in private prac- tice. Panel members’ areas of expertise include regu- latory and legislative analysis, litigation, and airport safety and security, and they represent both commer- cial service and general aviation airports. The panel meets approximately once a year to select topics that are (1) widespread enough to gener- ate broad interest, (2) timely and critical to the air- port community at large, (3) considered to have sufficient quantity and quality of information to pro- duce a digest, and (4) not being researched by other entities that would render the digest obsolete. Once the topic has been selected, the panel col- laborates to define the scope of work, which is then posted and distributed as a request for proposals (RFP). Any entity providing a detailed response to the RFP may submit its proposal. The panel then selects the proposer that it believes best fits the criteria set for achieving the research objective. In many cases, the selected contractor, the principal investigator, is an attorney, but depending on the subject area, the prin- cipal investigator may be a subject matter expert, with an attorney assisting the effort. Once the contractor has been selected, the panel then approves a submitted outline of the report and provides feedback. The principal investigator then conducts further research and submits a draft for panel review. The panel provides feedback and sug- gests changes and—based on these—the author prepares a second draft, called the draft final deliv- erables (DFD). The panel provides comments on the DFD and completes a ballot as to its appropriateness for publication. On the basis of those comments, the principal investigator prepares and submits the final deliverables (FD). Once the FD is submitted to ACRP, it goes through a quality review to ensure that the panel’s comments have been adequately addressed and that sources are properly cited. After panel and ACRP review, the FD is submitted for publication. LEGAL RESEARCH STUDIES PANELISTS Individuals are appointed to ACRP project panels on the basis of professional experience, qualifications, and enthusiasm for the topic. For ongoing projects, such as ACRP Project 11-01, “Legal Aspects of Air- port Programs,” ACRP Project 11-03, “Synthesis Program,” and ACRP Project 11-04, “University Stu- dent Programs,” the appointment process also takes into account the need for continuity, subject matter expertise, and responsiveness to process require- ments, as well as the interests of the individual panel members. From time to time, panel members are rotated to bring new perspectives to the project, improve project panel performance, or facilitate the work of the panel. Panel members generally serve on an ongoing project panel for approximately 3 to 4 years before rotating. The ACRP legal studies project has been fortu- nate to have many outstanding industry experts vol- unteer their time to oversee the research and thereby help build a library of resources for the industry that otherwise would not exist in any one place. Table 1 lists ACRP Project 11-01 panel members past and present. LEGAL RESEARCH TOPICS During the first 11 years of ACRP Project 11-01, there have been almost 50 topics selected for legal research in broad areas of interest to the airport legal community. Table 2 shows the topics that have been selected in the years 2006–2017. LEGAL RESEARCH DIGESTS Thirty-three ACRP Legal Research Digests have been published to date and are available at www.trb .org/acrp. The following sections summarize each digest. Legal Research Digest 1: Compilation of Airport Law Resources Daniel Reimer, Kaplan Kirsch & Rockwell, LLP Sources for practitioners of airport law are widely dispersed. There are no case-comprehensive reporters, digests, treatises, or similar documents dedicated to airport law. Nor are there any compre- hensive databases or compilations available online. One consequence of this dispersion of knowledge is that a lawyer conducting research on airport law typically must consult multiple sources to gather information. This digest, which includes over 500 federal sources and indicates where those sources can be

3 Table 1 ACRP Project 11-01 2006–2017. Name Affiliation Name Affiliation Tom Anderson Metropolitan Airports Commission Minneapolis, MN Eduardo Angeles Los Angeles World Airports Los Angeles, CA David Y. Bannard* Foley & Lardner LLP Boston, MA Arthur Berg* New York, NY Rod C. Borden Columbus Regional Airport Authority Columbus, OH Patricia A. Hahn, Esq. Washington, DC Jay Hinkel City of Wichita Wichita, KS Charlotte “Carly” Hegle Sacramento County Sacramento, CA Tim Karaskiewicz* General Mitchell International Airport Whitefish Bay, WI Marco Kunz Salt Lake City International Airport Salt Lake City, UT Robert Maerz San Francisco City Attorney’s Office San Francisco, CA Carlene McIntyre Port Authority of New York & New Jersey * Denotes Chair or past Chair. Barry Molar* Unison Consulting Wheaton, MD Donald Mueting Minnesota DOT St. Paul, MN Clyde Otis Post, Polak, Goodsell & Strauchler, P.A. Princeton, NJ Dan S. Reimer Denver International Airport Denver, CO Elaine Roberts Columbus Regional Airport Authority Columbus, OH Elizabeth Smithers Charlotte Douglas International Airport Charlotte, NC Marjorie Perry Tucson Airport Authority Tucson, AZ E. Lee Thomson Clark County (NV) District Attorney Las Vegas, NV Kathleen A. Yodice, Esq. Yodice Associates Aircraft Owners and Pilots Association Washington, DC (continued on next page) Table 2 ACRP Project 11-01 Legal Research Topics 2006–2017. Topic Title Status 01-01 Compilation of Digest—Parts 13 and 16 Determinations and Related Documents Published as Legal Research Digest 4 (CRP-CD-68) (October 2008) Superseded by Legal Research Digest 21 01-02 Theory and Law of Airport Revenue Diversion Published as Legal Research Digest 2 (May 2008) 01-03 Compilation/List of Airport Law Resources Published as Legal Research Digest 1 (January 2008) 01-04 Survey of Airport Laws and Regulation of Commercial Ground Transportation Published as Legal Research Digest 3 (July 2008) 01-05 Responsibilities for Implementation and Enforcement of Airport Land-Use Zoning Restrictions Published as Legal Research Digest 5 (March 2009) 01-06 Who is the Owner or Operator for Purposes of the Right to Self-Fuel? Published as Legal Research Digest 8 (December 2009) 01-07 The Impact of Airlines Bankruptcies on Airports Published as Legal Research Digest 6 (May 2009)

4 01-08 The Law and Regulations of Airport Ownership Published as Legal Research Digest 7 (August 2009) 01-09 Survey of the Elements of Disparity Studies for Airport Disadvantaged Business Enterprise Programs Terminated 02-01 Obstructions Affecting Navigable Airspace Merged with 2-02 for Topic 02-05 02-02 Use and Success of Avigation Easements and Other Tools for Airport Compatible Land Use and Development of Model Language Merged with 2-01 for Topic 02-05 02-03 Case Studies on Community Challenges to Airport Development Published as Legal Research Digest 9 (June 2010) 02-04 Analysis of Federal Laws, Regulations and Case Law Regarding Airport Proprietary Rights Published as Legal Research Digest 10 (September 2010) 02-05 Practices to Achieve Airport Compatible Land Uses and Minimize Obstructions in Navigable Airspace Published as Legal Research Digest 14 (April 2012) 03-01 Fair Disclosure of Airport Impacts in Real Estate Transfers Published as Legal Research Digest 12 (November 2011) 03-02 Compilation of State Aviation Authorizing Legislation Published as Legal Research Digest 15 (July 2012) 03-03 Survey of Minimum Standards for Commercial Aeronautical Activities at Airports Published as Legal Research Digest 11 (February 2011) 03-04 Airport Rates and Charges: Law and Policy Merged with 04-05 03-05 Analyses of State and Federal Regulations that May Impede State Initiatives to Reduce an Airport’s Carbon Footprint Published as Legal Research Digest 17 (November 2012) 03-06 An Index and Digest of Decisions in Legal Research Digest 1 Published as Legal Research Digest 13 (CRP-CD-108) (March 2012) 04-01 Airport Liability for Wildlife Management Published as Legal Research Digest 20 (July 2013) 04-02 Legal Issues Related to Developing (SMS) and SMRD Documents Which May Be Available to the Public Published as Legal Research Digest 19 (January 2013) 04-03 Analysis of Federal Laws, Regulations, Case Law, and Survey of Existing Airport NPDES Permits Regarding Tenant- Operator Responsibilities Under NPDES and Storm Water Management BMPs Under Owner/Airport’s Operating Permits Published as Legal Research Digest 25 (July 2015) 04-04 Buy America Requirements for Federally Funded Airports Published as Legal Research Digest 18 (February 2013) 04-05 Compilation of DOT and FAA Airport Legal Determinations and Opinion Letters, through December 2011 Published as Legal Research Digest 21 (CRP-CD-141) (October 2016) 04-06 The Role of the Airport Sponsor in Airport Planning and Environmental Reviews of Proposed Development Projects Under the National Environmental Policy Act (NEPA) and State Mini-NEPA Laws Published as Legal Research Digest 22 (April 2014) 04-07 Airport Contracting Survey of Federal and State Standards Published as Legal Research Digest 16 (August 2012) Table 2 (Continued) Topic Title Status

5 05-01 The First Amendment and Airport Activities Published as Legal Research Digest 26 (August 2015) 05-02 Sovereign Immunity and Applicability to Airports Published as Legal Research Digest 24 (March 2015) 05-03 The Fourth Amendment and Airports Published as Legal Research Digest 27 (April 2016) 05-04 A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport Published as Legal Research Digest 23 (February 2015) 06-01 Operational and Legal Issues with Fuel Farms Published as Legal Research Digest 28 (June 2016) 06-02 Contract Risk Management for Airport Agreements Published as Legal Research Digest 30 (November 2016) 07-01 Impact of Firearms Laws on Airports Published as Legal Research Digest 29 and Web-Only Document 29 (August 2016) 07-02 Preemption of Worker Retention and Labor Peace Agreements at Airports Published as Legal Research Digest 31 (February 2017) 08-01 Legal Issues Related to the Implementation and Operation of Safety Management Systems for Airports Research is under way 08-02 Legal Risks of Operating a Public Airport Published as Legal Research Digest 33 (October 2017) 08-03 Evolving Law on Airport Implications by Unmanned Aerial Systems Operators Published as Legal Research Digest 32 (October 2017) 08-04 Legal Consideration in Funding and Development of Multi- Modal Facilities Research is under way 09-01 Airport Public Health Preparedness & Response: Legal Rights, Powers & Duties Research is under way 09-02 Legal Issues Relating to Airports Promoting Competition Research is under way 09-03 Permitted Airport Involvement in Economic Development Efforts Research is under way 10-01 Update of Compilation of FAA/DOT Airport Legal Determinations (update to Legal Research Digest 21) Pending 10-02 Legal Issues Relating to Large Scale Airport Construction Projects Research is under way 10-03 Legal Issues Relating to Airport Commercial Contracts Pending 10-04 Updated Survey of Laws and Regulations Applicable to Airport Commercial Ground Transportation (update to Legal Research Digest 3) Pending 11-01 Permissible Uses of Airport Revenue and Property Pending 11-02 Accommodation of Federal Agencies—Rights and Obligations of Host Airports Pending 11-03 Analysis of Laws, Regulations and Case Laws Regarding Airport Customer Facility Charges Pending Table 2 (Continued) Topic Title Status

6 found online or in case reporters, is one attempt to remedy this problem. Section I identifies the relevant statutes, regulations, case law databases, secondary sources, periodicals, and state aviation departments. Section II is a topical index containing the statutes, regulations, federal policies, reports, articles, and cases relevant to a particular subject. Legal Research Digest 2: Theory and Law of Airport Revenue Diversion Paul Stephen Dempsey, Tomlinson Professor of Law, McGill University Airports in the United States are overwhelmingly owned and operated by municipal, county, regional, and in some instances state governments, although the federal government has provided much of the funding for these airports. The fiscal problems facing munici- pal governments more generally have forced many to search for new sources of revenue. Unfortunately, the ability of federally funded airports to support local governments is limited by law. Use of airport revenue for purposes other than airport purposes is unlawful revenue diversion. Understanding revenue diversion requires a basic understanding of general principles of airport cost and revenue and their subcomponents, including capital and operating costs and the various sources of revenue. This digest describes the issue of airport revenue diversion, what prompted Congress to address it, how it has manifested itself, and how the prohibition against revenue diversion has been enforced. Legal Research Digest 3: Survey of Laws and Regulations of Airport Commercial Ground Transportation Lew R. C. Bricker and Gerald P. Cleary, Attorneys, SmithAmundsen, LLC Commercial ground transportation at U.S. air- ports includes public transit, door-to-door shuttle van service, charter buses, limousines, rental cars, taxicabs, hotel courtesy shuttles, wheel chair ser- vices, and courier operators. These ground trans- portation carriers must enter into contracts and register with the airport authority they serve as well as comply with a myriad of federal, state, and local rules and regulations. While the U.S. Federal Motor Carrier and Safety Administration has pri- mary responsibility for issuing federal regulatory guidance for commercial ground transportation operating in interstate commerce regarding safety, size, and weight restrictions on passenger-carrying vehicles, state and local ground transportation rules and regulations are typically specific to individual airports. The state and local rules and regulations contain provisions detailing access to commercial loading and unloading areas; meeting, loading, and unloading passengers; procedures for obtaining oper- ating permits, licenses, and agreements; automated vehicle identification tag requirements; operator conduct; solicitation; fees; 1-day or infrequent-user permits; and airport security. This digest compiles and synthesizes avail- able guidance, including regulations, statutes, poli- cies, and decisions pertaining to commercial ground transportation. Legal Research Digest 4: Compilation of DOT and FAA Airport Legal Determinations and Opinion Letters Through December 31, 2007 Spiegel & McDiarmid, LLP Virtually all U.S. airports with commercial air- line service have accepted federal grants under the Airport Improvement Program (AIP). In exchange for these grants, airports agree to comply with numer- ous federal assurances, ranging from requirements that their rates be reasonable to implementation of disadvantaged business enterprise programs. The Federal Aviation Administration (FAA) adjudicates complaints, brought by FAA or raised by third par- ties, relating to alleged failures by airports to comply with the AIP grant assurances. Prior to 1966, the FAA’s procedures for process- ing and making determination regarding complaints against federally funded airports were set forth in 14 C.F.R. Part 13, a set of regulations applicable to a variety of adversarial proceedings within FAA’s jurisdiction. In 1997, the FAA promulgated Part 16, regulations relating to processing complaints against airports specifically. Part 16 includes several stages of FAA review; and therefore, multiple decisions may be issued by the FAA in a particular Part 16 proceeding. It is difficult for attorneys representing airports to find relevant cases either in the older Part 13 deci-

7 sions relating to airports or in the more recent Part 16 decisions. In addition, airport attorneys are rarely aware of DOT General Counsel opinions or FAA Chief Counsel opinions on airport legal issues. This CD-ROM compilation makes these materials avail- able along with indexes designed to facilitate the search for specific questions and issues. Legal Research Digest 5: Responsibility for Implementation and Enforcement of Airport Land-Use Zoning Restrictions William V. Cheek, Esq., William V. Cheek & Associates Commercial aviation has increased significantly over the past 20 years. Likewise, communities adja- cent to airport property have grown during the same time span. Recent airport expansion plans have been vigorously opposed, often resulting in court action. Such litigation is caught at the intersection of two traditional practices: local communities are charged with control of land use and do so through zoning and land-use restrictions, while the federal govern- ment is responsible for controlling aircraft opera- tions. States vary as to which administrative body has aviation zoning authority and the extent of that authority. Generally, when a project is deemed as an enhancement to flight safety or a modification to property or facilities on existing airport grounds, courts tend to find these modifications in the nature of “aircraft operations” under the exclusive respon- sibility of the federal government. However, when an enhancement project requires additional land, courts are reluctant to preempt local zoning law. This digest discusses federal, state, regional, and local laws and regulations pertaining to aviation land use and zoning and identifies the primary respon- sibilities of each relevant legal body and how this responsibility is communicated and enforced. Legal Research Digest 6: The Impact of Airline Bankruptcies on Airports Jocelyn K. Waite, Waite & Associates The basic theory of a succession of the United States Bankruptcy Acts has been to provide debt- ors protection from creditors while providing an orderly system for paying all creditors. Bankruptcy was considered so essential that it was entrusted to Congress under Article One of the Constitution of the United States. Following the September 11, 2001 (9/11) attacks on the World Trade Center, U.S. airlines have filed bankruptcies at an alarming rate. In 2005 alone, there were at least seven airlines bankruptcies. Airline bankruptcies not only pose significant financial hard- ship on airports dependent on airlines for revenue, but also raise significant legal issues concerning treat- ment of airlines’ obligations to airports under the bankruptcy process. This digest examines those legal issues pre- sented by the filing of airline bankruptcies that are relevant to airports and explores how airport law- yers and courts have responded to those issues. The digest presents the basics of bankruptcy theory and law relevant to airport operating agreements with airlines and identifies issues such as lease rechar- acterization and payment of stub period rent that particularly affect airports dealing with airlines in bankruptcy. The digest primarily addresses federal business bankruptcy cases, although it does identify issues on which state law will govern. Legal Research Digest 7: Airport Governance and Ownership Daniel S. Reimer, Esq., and John E. Putnam, Esq., Kaplan Kirsch & Rockwell, LLP Airports are often characterized by their owner- ship, but it is the governance structure that determines how an airport is managed, operated, and developed. For example, an airport can be owned by a municipal- ity and operated by either a regional- or city-controlled airport authority. General-purpose governments at the federal, state, county, and municipal levels all have governed or currently govern airports, as well as special-purpose entities such as airport authori- ties and port authorities. In spite of the multiplicity of governance models, there has been relatively little analysis of the advantages and disadvantages of dif- ferent governance structures and how well different types of public entities perform the function of gov- erning airports. This digest is intended to serve two principal purposes: (1) to detail the laws and legal principles affecting airport governance and (2) to correlate air- port governance and the governing body’s ability to perform particular functions.

8 Legal Research Digest 8: The Right to Self-Fuel C. Daniel Prather, Prather Airport Solutions, Inc. The fueling of aircraft at airports is a major busi- ness activity that can generate considerable income for airports and simultaneously constitute consid- erable expense for an aircraft owner/operator. The Airport and Airway Improvement Act of 1982 (The Act), 49 U.S.C. § 47101 et seq., and the Airport Improvement Program Sponsor Assurances require that the owner or operator of any airport—that has been developed or improved with federal grant assis- tance operate the airport for the use and benefit of the public and make it available for all types, kinds, and classes of aeronautical activity, including the self- fueling of aircraft. The Federal Aviation Administra- tion (FAA) issues Advisory Circulars that not only identify standards and procedures for compliance with this requirement but also define and clarify the meaning of aviation terms, such as self-fueling, which generally means using fuel obtained by the air- craft owner from the source of his/her preference. The definition and meaning of self-fueling must be dis- tinguished from that of commercial self-service fuel- ing, which the FAA defines as “fueling of an aircraft by the pilot using commercial fuel pumps installed for that purpose.” Notwithstanding the FAA Advisory Circular per- taining to self-fueling, airport attorneys and others continue to face questions concerning the denial of requests to self-fuel, limitations sponsors can impose on aircraft owners/operators, and prohibitions con- cerning the granting of exclusive rights leases and permits. There is a need for aviation attorneys and avi- ation personnel alike to possess a broad-based understanding of the legal issues involved with the development and implementation of rules or regula- tions that restrict an aircraft owner’s right to “self- service.” In addition, the airport sponsor is obliged to balance the aircraft owner’s right to self-serve against the requirement to effectively control activ- ities that may affect the safe and efficient opera- tion of the airport and the civil aviation needs of the public. The primary objective of this digest is to inform aviation attorneys and other aviation personnel pre- cisely how federal and local guidelines pertaining to self-fueling have been applied under different circumstances. This digest contains an expansive compilation and interpretation of related source documents including FAA administrative decisions, Advisory Circulars, and grant assurances necessary to inform concerned parties of the need to develop rules and regulations, as well as enforcement pro- ceedings relating to self-fueling. Legal Research Digest 9: Case Studies on Community Challenges to Airport Development Jaye Pershing Johnson, J.D. Development activities at airports around the United States have resulted in a number of chal- lenges against the Federal Aviation Administration (FAA) and airport proprietors from municipalities and community groups seeking to modify or prevent airport expansion and development. Challenges may use various legal theories to modify or, in some cases, to challenge airport development. This collection is intended to convey the strategies that the FAA and airport operators have relied upon in addressing community challenges to airport expan- sion and development and identify which strategies have succeeded, which have failed, and the reasons for both. This digest summarizes judicial decisions; explains the bases of the challenges to airport expansion and development, the defense to the challenges, and the outcome of the cases; and provides a summary of responses from airport proprietors to a survey regarding litigation strategies. Legal Research Digest 10: Analysis of Federal Laws, Regulations, and Case Law Regarding Airport Proprietary Rights Jodi L. Howick, Esq., Durham, Jones & Pinegar Airport owners and operators have certain pro- prietary rights to manage and control access to their facilities. These proprietary rights are the propri- etor’s state-granted powers to act to the extent they have not been superseded or preempted by federal law or modified by contract. The scope of these rights has developed over time in response to chal- lenges that airport proprietors have faced, and the history of these rights illustrates why proprietors may exercise rights that nonproprietors cannot.

9 This digest reviews some of the factors that have historically shaped airport proprietary rights and analyzes the relevant federal statutes, regula- tions, and case law with regard to airport proprietary rights, including regulation of noise, other environ- mental matters, safety restrictions, leasing practices, congestion management, and other airport access limitations. Legal Research Digest 11: Survey of Minimum Standards: Commercial Aeronautical Activities at Airports Daniel S. Reimer, Esq., and Paul A. Meyers, Kaplan Kirsch & Rockwell, LLP; Aviation Management Consulting Group Numerous commercial aeronautical activities occur at airports. Examples of these activities include aircraft fueling, aircraft line (ground handling) ser- vices, aircraft maintenance and repair, aircraft stor- age, aircraft rental and flight training/instruction, aircraft sales, and aircraft charter and management. Airport owners and operators commonly impose requirements that must be met by the businesses that perform these commercial aeronautical activi- ties. These requirements are known as “Minimum Standards.” Airport Minimum Standards vary from airport to airport, based on factors such as the nature of aeronautical activities, the type and level of air- craft operations, the type and number of based air- craft, the types of commercial aeronautical services provided, and available land and improvements. This digest contains source material for adopt- ing and enforcing minimum standards, presents sur- vey results showing current practices, and includes a compendium of comparative minimum standards. Legal Research Digest 12: Fair Disclosure and Airport Impact Statements in Real Estate Transfers Larry W. Thomas, Attorney at Law The purpose of fair disclosure laws is to provide prospective home buyers with sufficient informa- tion to make informed decisions about the pur- chase of property. In too many cases, property is purchased near airports without full disclosure of the nature of airport operations such as noise and flight paths. This creates the potential for purchaser remorse based on the lack of disclosure of air- port noise and operations. This digest examines the effect of a state or locality having no real property disclosure laws, existing general state real property disclosure laws, and existing state real property dis- closure laws specifically requiring the disclosure of airports in close proximity to the property being offered for sale. After identifying and analyzing state real property disclosure laws specifically requir- ing the disclosure of airports, the digest includes annotated typical fair real property disclosure law provisions. The latter includes provisions essen- tial for effective fair disclosure of airport-related impacts. Legal Research Digest 13: An Index and Digest of Decisions: Compilation of Airport Law Resources Kaplan Kirsch & Rockwell, LLP This compilation is the third ACRP publication that attempts to provide airport lawyers the tools to be able to quickly identify relevant legal concepts and case precedents. ACRP Legal Research Digest 1: Compilation of Airport Law Resources provided a comprehensive listing of airport-related legal resources, including judicial decisions, government publications, scholarly journals, and other periodi- cals. ACRP Legal Research Digest 4: Compilation of DOT and FAA Airport Legal Determinations and Opinion Letters Through December 31, 2007 pro- vides an index similar to Legal Research Digest 1, as well as summaries and links to source documents for DOT and FAA administrative decisions, deter- minations, and legal opinions. This CD-ROM compilation provides access in a single source document that not only lists judicial decisions relating to a particular legal issue but also provides a summary of relevant holdings and a link to the source document itself. Legal Research Digest 14: Achieving Airport-Compatible Land Uses and Minimizing Hazardous Obstructions in Navigable Airspace Jocelyn K. Waite, Waite & Associates Federal law currently requires airport owners to provide for the safe overflight of property of

10 surrounding airports, as well as to restrict surround- ing land uses to those that are airport-compatible. Potential tools for ensuring compatible land use include comprehensive (or master) land-use plan- ning, zoning, building and site design, and aviga- tion and clearance easements. An airport sponsor’s deployment of these tools is based on state and local, not federal, law. Airport attorneys must not only be cognizant of land-use compatibility requirements, but must be familiar with the range of options for com- plying with them and aware of the legal implications of implementing the various options. This digest discusses airport-compatible land-use requirements, the legal issues related to achieving airport-compatible land use, and legal issues particu- lar to eliminating hazardous obstructions to airspace. The digest concludes by reviewing the major legal issues of concern in achieving airport-compatible land use. Legal Research Digest 15: Compilation of State Airport Authorizing Legislation Jodi L. Howick, Esq., Durham, Jones & Pinegar Most U.S. airports are government entities, and as such, state laws provide the means to create an air- port entity and authorize its operating powers. An air- port entity’s local powers are essential to its operation and meeting its federal obligations. Each state has enacted legislation creating and empowering govern- mental entities such as state agencies, municipalities, airport authorities, joint power organizations, and so on, to plan, design, construct, operate, and protect public airports. The purpose of this digest is to present information that has been compiled, reviewed, and summarized pertaining to each state’s airport-specific legislation, including laws establishing, developing, operating, expanding, and funding airports. The com- pilation focuses on legislation expressly applicable to public airports rather than legislation applicable to local governments generally. It compares and con- trasts zoning and land use; purchasing authority; com- mercial operations; ground transportation, funding, and taxing authority; law enforcement; and sovereign immunity. This digest seeks to provide policy makers, air- port operators, and other practitioners a convenient and synthesized resource of all states’ airport-specific legislation. Legal Research Digest 16: Procurement of Airport Development and Planning Contracts Robert Alfert, Jr., P.A., and Karen M. Ryan, Esq., Broad and Cassel; and Roy Block, RW Block Consulting, Inc. Most airport operators, as public agencies, are subject to some type of procurement law or regu- lation for carrying out procurements and awarding contracts. Airports receive funding from a variety of sources, including federal, state, and local govern- ments, as well as internal revenue sources, such as tenant revenue, concessions, and parking revenue. Each of these funding sources has its own procure- ment requirement and, in some instances, the require- ments may conflict. Similarly, while exceptions to the general requirements of competition may be avail- able, the circumstances and conditions that must be met to quality for the exceptions may vary. Airports that receive federal funds are subject to statutes, reg- ulations, operating guidance, and case law that will impact procurements. If an airport is funded by a number of different federal agencies, each may have its own requirement. Successfully navigating such a complex regulatory environment requires care- ful analysis, especially when the requirements are ambiguous or conflicting. This digest provides guidance to airport opera- tors, their counsel, and bidders on how to determine which requirements apply to any given procure- ment as well as providing an overview of the con- sequences for noncompliance so that airports can better understand the inherent risks associated with each funding source. Legal Research Digest 17: State and Federal Regulations That May Affect Initiatives to Reduce Airports’ GHG Emissions John E. Putnum, Lala T. Wu, Kaplan Kirsch and Rockwell LLP; and Stephanie J. Tatham There is a growing movement among state and federal agencies to focus on transportation systems, including airports, in the ongoing efforts to reduce carbon emissions. This interest stems from a vari- ety of motivations, including concerns about the long-term sustainability of the aviation industry; the potential for mandatory regulation of airport activities in the future; the existing policies of state,

11 county, or municipal entities; growing interest from airlines and other tenants; and the leadership of air- port staff and boards. In California, for example, the San Diego Airport’s Master Plan became the subject of focus by the California Attorney General pursuant to state law. Subsequently, the Attorney General and the San Diego Airport entered into a Memorandum of Understanding that specifies the measures the Airport will take to reduce greenhouse gas (GHG) emissions. However, under federal law, it is pri- marily the U.S. Environmental Protection Agency and the Federal Aviation Administration (FAA) that have authority to regulate aircraft emissions. It can be expected that ongoing state and federal mandates to reduce GHG emissions will have an impact on airports nationwide as the FAA and states seek ways to accomplish airport GHG reductions. This digest introduces airport management and staff to legal issues that are relevant to implementing GHG mitigation measures at airports. It would be useful for airport lawyers to have a digest of airport initiatives and state and federal laws and regulations that govern an airport’s ability to implement GHG reduction efforts consistent with their concurrent obligation to permit aviation activity as mandated by federal statutes, regulations, and the FAA. Legal Research Digest 18: Buy America Requirements for Federally Funded Airports Timothy R. Wyatt, Conner Gwyn Schenck, PLLC The Federal Aviation Administration (FAA) has a statutory provision at 49 U.S.C. 50101 et seq. that establishes the Buy America requirements for the Airport Improvement Program (AIP). The Ameri- can Recovery and Reinvestment Act (ARRA) has its own provision. Other components of the U.S. Department of Transportation, such as the Federal Transit Administration (FTA), have their own stat- utory Buy America requirements, which may be similar to, but not identical to, the requirements governing AIP. The FTA in particular has issued extensive guidance and regulations governing the subject. The Buy America requirements, mandated by federal law, have created confusion among federal grantees, consultants, contractors, and the airport industry in general. The FAA issued guidance on Buy America requirements for the AIP and ARRA in the form of Program Guidance Letter 10-02 (Febru- ary 24, 2010). The focus of this guidance, however, is on the application of the waiver and exception provi- sions in the statute. Confusion about other aspects of the requirements may linger. Confusion and uncer- tainty in the way federal requirements apply can be costly or considerably delay the purchase of essential equipment. This digest discusses the legislative history per- taining to Buy America, the applicable federal regu- lations, and how it has been applied at airports. Legal Research Digest 19: Legal Issues Related to Developing Safety Management Systems and Safety Risk Management at U.S. Airports David Y. Bannard, Foley and Lardner LLP Safety Management System (SMS) has been defined as a systematic approach to managing safety not only by proactively conducting safety assess- ments before there is an incident or accident but also by having the necessary policies, procedures, orga- nizational structure, and accountabilities in place. SMS has four key elements: (1) Safety Policy, which defines the methods and tools for achieving safety goals, including management accountability for such goals; (2) Safety Risk Management, which requires a proactive approach to identifying risks, quanti- tatively and qualitatively categorizing risks, and establishing mitigation for identified risks; (3) Safety Assurance, which includes a method for establishing processes to monitor an organization’s performance in identifying risks and establishing preventative or corrective actions to maintain safety; and (4) Safety Promotion, which involves the establishment of pro- cedures and processes that change the safety culture and environment, including the establishment of con- fidential reporting systems, to encourage employee reporting and feedback as well as employee training. The identification of risks and the creation of such records could increase airports’ liability as entities subject to their individual state sunshine laws. The result could be less data obtained because confidenti- ality of data is crucial to those reporting information. Because SMS has been in effect at airports around the world, experiences from Europe, Canada, and Australia are discussed. SMS has been implemented in other industries in the United States, including the

12 maritime, oil, and gas industries, as well as in the area of patient safety. These are examined in the context of U.S. airport implementation. Legal Research Digest 20: Airport Responsibility for Wildlife Management Douglas J. Rillstone, P.A., and Caroleen M. Dineen, Esq., Broad and Cassel Wildlife management has increasingly become a forefront issues for airports. Airports are required to provide a safe environment for all users, and wildlife around an airport can be detrimental to the safety of aircraft and passengers. Conversely, airports are subject to a variety of federal and state laws and reg- ulations aimed at protecting wildlife and their habi- tats. These sometimes conflicting mandates must be factored into an airport’s policies and procedures. Airports experiencing wildlife strikes, and often those that have not, are required to prepare a Wild- life Hazard Management Plan to minimize potential aircraft and wildlife conflicts. These plans must also take into account the laws and regulations protect- ing wildlife. In addition, airports must consider off- airport property to ensure compatibility with aircraft operations. Knowing and understanding these regulations and laws is the first step in compliance. This digest compiles the laws and regulations pertaining to wild- life hazard management and discusses mitigation techniques applicable to airport operators. Legal Research Digest 21: Compilation of DOT and FAA Airport Legal Determinations and Opinion Letters Through December 2012 Spiegel & McDiarmid, LLP This digest updates Legal Research Digest 4. Legal Research Digest 22: The Role of the Airport Sponsor in Airport Planning and Environmental Reviews of Proposed Development Projects under the National Environmental Policy Act (NEPA) and State Mini-NEPA Laws Timothy R. Wyatt, Connor Gwyn Schenck, PLLC Compliance with the environmental review pro- cess in accordance with the National Environmental Policy Act (NEPA) for airport development projects is the responsibility of the Federal Aviation Admin- istration (FAA). It is the airport sponsor who identi- fies, defines, and determines the purpose and need of the proposed action and, therefore, plays a signifi- cant role in the NEPA process. The steps of the environmental review in the NEPA process require the Federal Aviation Admin- istration and the airport sponsor to work together and coordinate, with specific responsibilities for each. There also may be third parties with whom there needs to be coordination. The level of environmen- tal review varies by the type of airport development and/or is based on the NEPA action. In addition to the different types of reviews and/or action items, there are state regulations that are similar and that are referred to as “mini-NEPA” statutes. Legal Research Digest 23: A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport Kaplan Kirsch and Rockwell LLP and Aviation Management Consulting Group, Inc. Airport sponsors who receive a grant from the Federal Aviation Administration for an airport proj- ect are obligated to agree to a number of assurances. One of those assurances provides that the airport sponsor will make the airport available for public use on reasonable conditions and without undue dis- crimination. The intent of this assurance is to ensure that aeronautical users will have reasonable access to the airport. Airport sponsors can encounter issues under this grant assurance by limiting access to the airport, directly or indirectly, ranging from adopting express restrictions on particular aeronautical activ- ities to less obvious actions to ensure safety, secu- rity, and economic sustainability such as enforcing airport rules and regulations and negotiating and enforcing lease and rental agreements, airport fees, and local laws. This digest describes the sponsor assurances and how they limit the airport sponsor from unrea- sonably restricting access for aeronautical activity at general aviation airports. Although focused on general aviation airports, all airport sponsors will benefit from this guide. In Appendix A, readers will find fact sheets that summarize the law on access

13 issues as applied to specific activities. Appendix B is a practical guide to leasing airport property, which contains best practices for lease and use agreements of airport property. Legal Research Digest 24: Sovereign Immunity for Public Airport Operators Seay Law International The legal principle of sovereign immunity has its origins in the common law concept that, as ruler of the country, the sovereign (government) cannot be sued unless it consents. The Eleventh Amend- ment to the United States Constitution codified this protection for states, protecting them from being sued in federal courts. While the basic principle remains today, it has been the subject of legisla- tive enactments at the federal and state levels that circumscribe, limit, or otherwise waive sovereign immunity. Because local governmental entities are not recognized as sovereigns in their own right, they derive their sovereign immunity from state legisla- tion and exercise only those sovereign powers del- egated to them by the states. Most public airports are owned and operated by units of local government or regional governmental authorities. Therefore, the extent of sovereign immunity granted to airports varies from state to state. Legal Research Digest 25: Analysis of Federal Laws, Regulations, Case Law, and Survey of Existing Airport NPDES Permits Regarding Tenant-Operator Responsibilities under NPDES and Stormwater Management BMPS Under Owner/Airport’s Operating Permits CDM Smith in collaboration with Barg Coffin Lewis and Trapp, LLP The Federal Clean Water Act amendments of 1987 empowered the U.S. Environmental Protection Agency (EPA) to regulate discharges from municipal separate storm sewer systems and mandated that they establish a stormwater discharge permitting system. In 1990, EPA published guidelines for certain storm- water discharges associated with 11 categories of industrial activities known as the National Pollutant Discharge Elimination System. Airports servicing more than 100,000 passengers were subject to these guidelines. State environmental regulatory agencies are approved to uphold and enforce regulatory standards promulgated by EPA, and thus administer the State Pollutant Discharge Elimination System program designed to monitor and minimize environmental impacts of wastewater and stormwater runoff on both surface and ground water. However, states are free to adopt stricter standards than EPA. Airports, as owner/operator of the facility and storm sewer system, are responsible for storm water discharges to waters of the United States or to a munic- ipal separate storm sewer system. Airport authorities are therefore responsible for tenant compliance assur- ances for general stormwater management and ensur- ing best management practices. When the airport is the sole permittee, responsibility for implementation, enforcement, and liability can be an issue as the ten- ant operators are afforded coverage under the air- port’s specific stormwater permit. EPA encourages co-permittees because it promotes better coordina- tion of pollution prevention measures and control of stormwater discharges. Legal Research Digest 26: Regulations Affecting the Exercise of First Amendment Activities at Airports Jodi L. Howick, Durham, Jones & Pinegar Airports have been and continue to be the focus of considerable civic, religious, labor, and fundrais- ing activities and a venue for commercial adver- tising. These activities intersect with the safe and secure daily operation of airports. Airport operators regulate First Amendment conduct in a variety of different ways (e.g., local regulation, ordinance, and statute). While there has been a great deal written on case law concerning the extent to which these activi- ties are protected by the First Amendment, there has not been any focus on how airports are regulating First Amendment activities in an increasingly con- gested and security-conscious environment. Legal Research Digest 27: The Fourth Amendment and Airports Jodi L. Howick, Howick Law, PLLC The Fourth Amendment is specifically designed to ensure that searches and seizures of property are not conducted arbitrarily. This principle touches the

14 lives of citizens most often when they are traveling. The impact of the Fourth Amendment of the United States Constitution on security restraints at com- mercial airports is one that calls into question the limits of authority of both the federal government through the Transportation Security Administration (TSA) and state and local law enforcement officials who assist in overseeing security at these airports. The screening of passengers and property at pas- senger checkpoints at U.S. commercial airports is the responsibility of TSA, with the airport operator assisting as necessary. As responsibility shifts from TSA to the local airport operator and law enforce- ment, there is potential for misunderstandings. Legal Research Digest 28: Operational and Legal Issues with Fuel Farms W. Eric Pilsk, Kaplan Kirsch and Rockwell, LLP; David C. Benner, Aviation Management Consulting Group; and Louis M. Timpanaro, Jr., Crystal and Company Airports need to provide a ready source of fuel for all of their users, including commercial airlines, general aviation, corporate aircraft operators, and other commercial operators. Fuel farms are an effi- cient way to provide the storage and dispensing of aviation fuels to multiple users at an airport. But there are different ownership and operating models for achieving this objective. Some airports may choose to serve as the single source of fuel, while others retain commercial providers, and still larger airports may have an airline fuel consortium. Ana- lyzing the most appropriate model includes under- standing the legal issues, safety and operational standards, risk assignment, environmental liability and other risk management issues, and insurance limits and structures, in addition to the various state, federal, and local rules and regulations. Legal Research Digest 29: Impact of Firearms Laws on Airports Larry W. Thomas, The Thomas Law Firm The right to carry guns at airports is subject to the United States Constitution, federal and state legislation, and judicial decisions. Some state laws allow guns to be carried openly in public places. Most state laws regulate how guns are to be carried in a vehicle or left in a public or an employer’s park- ing lot. These and other state laws also have ramifi- cations for commercial airports in the United States. The Second Amendment to the United States Constitution generally provides the parameters of the constitutionally protected right to bear arms. A number of U.S. Supreme Court cases delineate the scope of this constitutional protection. But there also have been federal district and appellate court deci- sions demonstrating that there is a lack of consensus among the courts on the limits of the constitutional protection of firearms. All 50 states have enacted statutes that relate to the carriage of guns within their borders. Some states have relaxed their restrictions, particularly on the open carrying of firearms. Other states have increased their restrictions on both the open and con- cealed carrying of guns. Some states ban the carry- ing of a firearm anywhere in an airport, whereas many states prohibit localities from enacting laws that regulate the possession of firearms in a manner inconsistent with state law. Legal Research Digest 30: Contract Risk Management for Airport Agreements Robert Alfert, Jr., and Douglas E. Starcher, Broad and Cassel Airports enter into a variety of agreements with numerous vendors and tenants, such as leases and other agreements that provide access to the airfield, concession agreements, ground transportation agree- ments, construction contracts, and professional ser- vices, among others. All of them generate varying degrees of risk that can be addressed through risk sharing and shifting or insuring. The management of risk can also be addressed by drafting airport agree- ments that include explicit statements of legal obli- gations so as to mitigate and manage risk. Legal Research Digest 31: Preemption of Worker-Retention and Labor-Peace Agreements at Airports Eric T. Smith, Kaplan Kirsch & Rockwell, LLP Airports are centers of economic activity and places where a great number of jobs exist. Viewed as engines of economic development, airports often

15 become the focus of groups seeking to have an impact on the local economy and the persons who work at the airport. These groups include elected officials, the media, social activists, and labor unions. Air- ports are increasingly being asked, for a variety of reasons, to become involved in matters that histori- cally were reserved for private employers to address with their own employees. Among the matters air- ports are becoming involved in are, potentially, setting minimum wage rates, establishing safety/ training baselines, and requiring “labor-harmony” or “labor-peace” agreements at the subject airports. These agreements generally require that, as a condition of operating on-airport property, an orga- nization must become signatory to some form of an agreement with a labor organization. These matters are usually injected into the conduct of on-airport business by the sponsor, including certain contractual language in the agreements between the sponsor and the business. The implications of involving the air- port in such matters may be dramatic, far-reaching, and fraught with legal entanglements. This is espe- cially true with respect to “labor-harmony” or “labor- peace” agreements. Legal Research Digest 32: Evolving Law on Airport Implications by Unmanned Aerial Systems Timothy M. Ravich, Ravich Law Firm, PLLC Unmanned aerial systems (UAS) are a rapidly developing part of aviation. Their operations raise numerous legal issues in the areas of safety, security, and privacy. The sizes of UAS and their uses are just as varied as their various constituents. Currently, it appears that UAS technology is ahead of the law. This legal digest is a practical guide to assist air- port sponsors and their legal counsel in understand- ing the basic legal and operational issues presented by civil UAS and evaluating best practices for man- aging these issues. It begins with a background on UAS uses, applications, regulations, and definitions, leading to operations within the National Airspace System, the issues of federalism as related to local and state laws, tort law implications, operations at airports, and best practices for airport operators. Legal Research Digest 33: Overview of Airport Duties and Standards of Care in Airfield Accident Cases Jodi Howick, Howick Law PLLC Aircraft accidents occur for many reasons, and several theories have been advanced for airport lia- bility. Some cases have alleged that airports were liable for not maintaining a “safe flight environment” consistent with state laws that govern premises oper- ators. Other cases have alleged liability for violating federal aviation requirements or have considered the role of federal advisory materials. Failure to issue appropriate NOTAMs (Notices to Airmen), wildlife hazard and management plans, FOD (foreign object debris), and snow and ice control are examples of the types of situations that can generate claims of liabil- ity. Airport owners and operators may be unaware of the existence of these cases and the legal theories that can determine liability when accidents occur in the airfield.

Transportation Research Board 500 Fifth Street, NW Washington, DC 20001 These digests are issued in order to increase awareness of research results emanating from projects in the Cooperative Research Programs (CRP). Persons wanting to pursue the project subject matter in greater depth should contact the CRP Staff, Transportation Research Board, National Academies of Sciences, Engineering, and Medicine, 500 Fifth Street, NW, Washington, DC 20001. COPYRIGHT INFORMATION Authors herein are responsible for the authenticity of their materials and for obtaining written permissions from publishers or persons who own the copyright to any previously published or copyrighted material used herein. Cooperative Research Programs (CRP) grants permission to reproduce material in this publication for classroom and not-for-profit purposes. Permission is given with the understanding that none of the material will be used to imply TRB, AASHTO, FAA, FHWA, FMCSA, FRA, FTA, Office of the Assistant Secretary for Research and Technology, PHMSA, or TDC endorsement of a particular product, method, or practice. It is expected that those reproducing the material in this document for educational and not-for-profit uses will give appropriate acknowledgment of the source of any reprinted or reproduced material. For other uses of the material, request permission from CRP. Subscriber Categories: Aviation • Law ISBN 978-0-309-44670-9 9 7 8 0 3 0 9 4 4 6 7 0 9 9 0 0 0 0