Amicus Curiae Brief — Dallas-Fort Worth International Airport Board v. Department of Transportation

No. 99-1745

In The

Supreme Court of the United States

¢

AMERICAN AIRLINES, INC.,

Petitioner,

THE UNITED STATES

DEPARTMENT OF TRANSPORTATION,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

e

BRIEF OF THE ARAPAHOE COUNTY PUBLIC

AIRPORT AUTHORITY AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

¢

RONALD S. Loser, Esq.

Brian A. Macoon, Esqa.*

Breca & Winters P.C.

1700 Lincoln Street, Suite 2222

Denver, Colorado 80203-4522

(303) 866-9400

Counsel for Amicus Curiae

Arapahoe County Public

Airport Authority

June 1, 2000 “Counsel of Record

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COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

i

Whether the Airline Deregulation Act’s preservation

of the “proprietary powers and rights” of local govern-

ments owning airports permits local government authori-

ties in the same metropolitan area to regionally plan

among themselves for a modern, regional airport that

accommodates all types of commercial passenger traffic

into the metropolitan area and then to limit further

smaller airports to general aviation reliever air service?

ii

TABLE OF CONTENTS

Page

QUESTION PREGENTED. 0.60 sedssccs sors Nisisees i

TABLE OF AUTHORITIES ......ccccccscscccccccces iii

INTEREST OF AMICUS CURIAE............0.0000. 1

REASONS FOR GRANTING THE PETITION....... 3

I. The History of Centennial’s Planning and Design

Supports the Granting of the Petition........... 4

CONCLAISEIIN 0.0. cccstcncnassunasateadchetceunsies 18

iii

TABLE OF AUTHORITIES

CASES

American Airlines, Inc. v. Department of Transporta-

tion, 202 F. 3d 788 (Sth Cir. 2000).................. +

Arapahoe County Public Airport Auth. v. Centennial

Express Airlines, Inc., 956 P. 2d 587 (Colo.

SOME rls wa vi seu kd erie a pu awe Kus os es Sy &, Oy % Ao, AT

City of Burbank v. Lockheed Air Terminal, Inc., 411

Ne wi soci sare canis icctasdacsciyducscac 3

Western Air Lines, Inc. v. Port Auth. of New York &

New Jersey, 658 F. Supp 952 (S.D.N.Y, 1986),

aff'd, 817 F. 2d 222 (2d Cir. 1987), cert. denied, 485

wa bb's cee wv 3, 4

STATUTES ;

rE I Ge ee ie ae 18

ee er ES od a oc ous 64 oo on ek cw cnweees 2, 4

nag ih tk ws nds bguipe cus ane cadesas 18

OTHER AUTHORITIES

I ie 17

INTEREST OF AMICUS CURIAE

The Arapahoe County Public Airport Authority

(“ACPAA”)! owns and operates Centennial Airport

(“Centennial”) which is the second busiest general avia-

tion reliever airport in the United States. As part of its

creation as a county airport? in 1966 the Arapahoe

County Commissioners publicly promised the county tax-

payers that Centennial? would serve as a general aviation

reliever airport for Stapleton International Airport+ (“Sta-

pleton International”) and Centennial would never serve

scheduled passenger service. Consistent with regional

and national planning, as well as its design and construc-

tion, Centennial has served for 33 years as a general

aviation reliever airport.

Centennial’s role as a general aviation reliever air-

port was affirmed by the Colorado Supreme Court in

Arapahoe County Public Airport Auth. v. Centennial Express

Airlines, Inc., 956 P. 2d 587 (Colo. 1998). Rejecting an air

1 Counsel for a party did not author this brief, in whole or

in part. The monetary contribution for the preparation and

submission of this brief is paid by the Board of Commissioners

of Arapahoe County, Colorado. Three Arapahoe County

Commissioners sit on the five member ACPAA Board of

Commissioners.

2 ACPAA became a political subdivision of the state of

Colorado in 1975 and assumed ownership and operation of

Centennial.

3 Centennial was originally known as the Arapahoe County

Airport.

* Stapleton International was closed in 1995 and replaced

by Denver International Airport (“DIA”).

carrier's challenge to ACPAA’s ban on scheduled pas-

senger service, the Colorado Supreme Court held that the

ban falls squarely within the proprietary powers excep-

tion, 49 U.S.C. §41713(b)(3). Id. at 595-96.

Approximately four (4) months after the Colorado

Supreme Court decision, and more than five (5) years

after ACPAA had contacted the United States Department

of Transportation (“DOT”) about its position on sched-

uled passenger service, the Federal Aviation Administra-

tion (“FAA”) ruled on three administrative complaints

that had been filed against ACPAA, which complaints

were pending at the time of the Colorado Supreme

Court’s decision>. The FAA declared that ACPAA did not

have the proprietary power to ban scheduled service and,

consequently, stripped ACPAA of its eligibility for discre-

tionary federal grant agreements.®

The decision of the United States Court of Appeals

for the Fifth Circuit (“Fifth Circuit”), which is at issue

here, declined to follow and distinguished the Colorado

5 Two of the complaints had been filed by the air carrier.

The first one had been filed in January 1995, following the state

trial court’s granting of the Permanent Injunction Order. The

second one was filed in February 1998, following oral argument

before the Colorado Supreme Court. Finally, a complaint had

been filed by a shareholder of the air carrier in August 1994.

6 The Final Agency Decision and Order was ultimately

entered on February 18, 1999. It is the subject of a Petition for

Review filed by ACPAA now pending before the United States

Court of Appeals for the Tenth Circuit (“Tenth Circuit”). See

Arapahoe County Public Airport Auth. v. Federal Aviation

Administration, et al., No. 99-9508. Oral Argument was held on

March 6, 2000.

Supreme Court decision. The Petition for a Writ of Cer-

tiorari (“Petition”) states: “The single important issue

presented .. . is whether the Airline Deregulation Act

(the ‘ADA’) preempts the authority of local governments

to implement regional plans that allocate particular types

of air traffic to specific airports.” Id. at 3. The resolution

of this issue in favor of ACPAA was one of the major

bases for the Colorado Supreme Court decision uphold-

ing the ban on scheduled passenger service at Centennial.

See Arapahoe County Public Airport Auth., 956 P. 2d at

589-91, 594, 596-97. Because of the history of Centennial’s

planning and design, ACPAA wishes to address this pro-

prietary power issue. It is an issue which ACPAA submits

is absolutely crucial, not only to Centennial and Dallas-

Fort Worth International Airport, but also to the national

aviation system.

REASONS FOR GRANTING THE PETITION

This Court has never addressed “what limits, if any,

apply to a municipality as a proprietor.” City of Burbank v.

Lockheed Air Terminal, Inc., 411 U.S. 624, 635-36 n. 14

(1973). As noted by the Colorado Supreme Court, the

lower federal courts have addressed the proprietary

powers exception in two general areas — noise and perim-

eter rules. See Arapahoe County Public Airport Auth., 956

P. 2d at 595. Consistent with the decision in Western Air

Lines, Inc. v. Port Auth. of New York & New Jersey, 658

F. Supp. 952 (S.D.N.Y. 1986), aff'd, 817 F. 2d 222 (2d Cir.

1987), cert. denied, 485 U.S. 1006 (1988), the Colorado

Supreme Court upheld the ban on scheduled passenger

service as a valid exercise of ACPAA’s proprietary

powers. Arapahoe County Public Airport Auth., 956 P. 2d at

594-96. As asserted by Petitioner, the Fifth Circuit deci- |

sion directly conflicts with the Western Air Lines, Inc. and

Arapahoe County Public Airport Auth. decisions. Granting

the Petition would provide this Court with the oppor- |

tunity for its first interpretation of 49 U.S.C. §41713(b)(3). |

Granting the Petition would also provide guidance and

direction, not only to all state and federal lower courts,

but also to the DOT and FAA which, as noted by Peti-

tioner, are acting inconsistently on the issues of propri-

etary powers and regional planning. See Petition at 16-17.

I. The History of Centennial’s Planning and Design

Supports the Granting of the Petition.

In declining to follow Arapahoe County Public Airport

Auth., the Fifth Circuit states:

To the extent that Arapahoe holds that it is within

an airport owner’s proprietary powers to

restrict service at a local airport without articu-

lating a viable purpose for the restriction, we

view that case as deviating from the generally |

accepted rule that we adopt here. In Arapahoe,

the Colorado Supreme Court - without finding

________ any purpose for the restriction beyond the pro-

prietor’s bald assertion that it would ‘strip’ the

airport Authority ‘of its ability and authority to

manage the Airport’, see id. at 591 - upheld a

municipal proprietor’s ban on all passenger ser-

vice at Centennial Airport, see id. at 595.

American Airlines, Inc. v. Department of Transportation, 202

F. 3d 788, 807 (5th Cir. 2000).

SEN ORE ET ere eC ee ee ee

ACPAA submits that the Colorado Supreme Court

did articulate several viable purposes for the ban, one of

which is at issue here - regional planning. A review of

the facts before the Colorado Supreme Court demonstrate

the relevance and importance of regional planning.

Centennial first opened in 1967. At the time, Sta-

pleton International was experiencing problems with

general aviation congestion and Centennial was built for

the express purpose of relieving Stapleton International

from general aviation activities so that Stapleton Interna-

tional could function as the scheduled passenger airport

for the Denver metropolitan area.

Controversy surrounded the creation of Centennial.

The Arapahoe County Commissioners promised the pub-

lic that Centennial would be general aviation only, and

would not permit scheduled passenger service. In 1975

the County Commissioners created ACPAA which is a

political subdivision of the State of Colorado. The Com-

missioners, whether County or ACPAA, have never

knowingly permitted scheduled passenger service at Cen-

tennial.

On May 7, 1993 Centennial Express Airlines, Inc.

(“CEA”) filed an Application to Conduct Scheduled Pas-

senger Service at Centennial. The Application proposed

to operate 30-seat aircraft directly to eight cities, six

scheduled flights per day. This proposed operation, at a

sixty (60%) percent load factor, would result in approxi-

mately 630,000 passengers a year at Centennial.”

” Subsequent to the Colorado Supreme Court ruling and

during the FAA hearings held on November 12, 1998, CEA

Ce

On July 21, 1993, ACPAA and Arapahoe County

wrote to DOT (“1993 letter”). The 1993 letter with sup-

porting materials, addressed why Centennial, a general |

aviation reliever airport, should not be required to accept |

or approve applications for scheduled passenger service.

The 1993 letter sets forth the history of Centennial’s plan-

ning as a general aviation reliever airport.

1. By letter dated February 1, 1963, the Public Util-

ities Commission of the State of Colorado set forth certain

facts and opinions in support of the establishment of a

new airport to be located southeast of Denver to serve

general aviation and to relieve congestion being experi-

enced at Stapleton International. The letter specifically

stated: “The suggested general aviation airport would

serve all types of civil aircraft, other than scheduled air

”

carriers. ...

2. On February 16, 1965, by Resolution, it was

recited that Arapahoe County had accepted an offer from

the United States government to fund preparation of

planning documents for a general aviation airport.

acknowledged that the May 1993 application would have

resulted in 96 scheduled passenger flights a day into and out of

Centennial or 2,880 passengers daily, and in one calendar year

1,051,200 passengers. With a 60% load factor there would be

630,000 passengers per year. Further, CEA had discussed a

proposal with the FAA to link 10 similar operations together at

Centennial and claimed that FAA approved this concept.

ACPAA notes that this concept could have resulted in a

potential 6.3 million passengers a year out of an airport that has

no on-the-airport fire and rescue, no terminal, no baggage

system, no adequate parking, and no adequate security.

3. On February 8, 1966 the Arapahoe County Plan-

ning Commission adopted a Resolution in support of the

construction of a general aviation airport.

4. On March 14, 1966 the crowded conditions at

Stapleton International were reported in a newspaper

article. On March 30, 1966 a public meeting was held

concerning the proposed construction of the Arapahoe

County Airport. Newspaper coverage of this event

reported that the Arapahoe County Planning Director

stated that the airport would serve general aviation and

not scheduled carriers, and a representative from the

FAA, in the audience at this meeting, was purported to

say that the new airport should relieve congestion at

Stapleton International.

5. In 1966, by Resolution, the Chairman of the Board

of Arapahoe County was authorized to sign a Request for

Aid - Federal Aid Airport Program, for the fiscal year

beginning July 1, 1966.

~ 6. On May 13, 1966 a local newspaper carried the

response of the Chairman of the Board to a homeowner’s

association opposing the proposed airport, that a further

justification for the airport was to act as a general avia-

tion reliever airport for a crowded Stapleton Interna-

tional.

7. Dedication ceremonies for the Arapahoe County

Airport were held on May 12, 1968. It was reported in the

newspaper that the FAA area director was delighted that

the new airport had been built and FAA regards Arap-

ahoe County Airport as “a much-needed reliever terminal

for general aviation”.

8. On October 21, 1981, ACPAA approved an Envi-

ronmental Assessment and Airport Master Plan Study

(“Master Plan”) for the airport. Presentations of the Mas-

ter Plan were made to local governmental entities and

other organizations. In addition, a public hearing was

held. The Master Plan was approved by the FAA by letter

dated October 28, 1981, in which letter it was stated that

the Master Plan complies with “the conditions of the

grant agreement” and that the Master Plan “should be

furnished to all local governmental agencies having an

interest in airport development”.

The Master Plan described the Arapahoe County Air-

port as a designated general aviation reliever for Sta-

pleton International and “in the National Airport System

Plan as a General Aviation (G/A) reliever with a Basic

Transport functional role” and that no “scheduled air

carrier or commuter airlines serve the airport although

air taxi and charter service is available through fixed

based operators”. In reference to Stapleton International,

the Master Plan stated that it was “the only air carrier

airport in the Denver Metropolitan Region . . . ” The

Master Plan stated that the National Airport System Plan

envisions no change in the airport operational role over

the 20 year period of the Master Plan. It also stated that

the “airport is expected to remain the primary general

aviation reliever in the Denver Metropolitan Region dur-

ing the next 20 years... ”

The Environmental Assessment was approved by

FAA on June 17, 1982. In the Environmental Assessment,

the Arapahoe County Airport was described as a general

aviation airport and a reliever airport for Stapleton Inter-

national:

9

The proposed action will not change the desig-

nation or role of Arapahoe County Airport

within the National, Regional, State, or Local

Airport system. The airport will remain a Basic

Transport airport, serving general aviation with

a role as a reliever for Stapleton International.

The Master Plan also contained the Airport Layout

Plan. The Layout Plan showed future construction of two

new east-west runways. In order to build these runways,

additional land had to be acquired. In 1982 and in 1983

grants were issued by the FAA for land acquisition for

these proposed east-west runways. By letter dated June

26, 1986 the FAA solicited support from ACPAA to sur-

render these grants, and in the letter it was stated:

Should you decide to abandon plans for the

runway, it will be necessary that you rethink the

future role of the airport. For example, if capac-

ity is constrained, it may be desirable (as was

done at Stapleton) to discourage use of the air-

port by certain types of operations. There would

also be need to rethink optimum use of existing

airport lands and to perhaps dispose of lands no

longer needed for airport purposes. These simi-

lar matters could be the focus of a revised Air-

port Master Plan Update.

On February 9, 1987 ACPAA and Arapahoe County

entered into a cancellation Agreement. By Resolution,

ACPAA approved a revised Airport Layout Plan which

eliminated the two proposed east-west runways and pro-

posed the extension of the existing east-west runway. In

April 1992, ACPAA approved a second revised Airport

Layout Plan which reduced the proposed extension of the

existing east-west runway.

SE

10

9. The 1993 letter also addressed regional planning

through the Denver Regional Council of Governments

(“DRCOG”). DRCOG is a voluntary association of 44

county and municipal governments that work together on :

regional planning issues. DRCOG develops and main-

tains a regional aviation system plan “to ensure that

overall general aviation planning is integrated with com-

prehensive regional and local goals, policies and plan-

ning.”

In 1989 DRCOG published the 2010 Regional Aviation

System Plan (“2010 Plan”). The preparation of the 2010

Plan was financed in part through a continuing aviation

system grant from the FAA. The 2010 Plan designated

Centennial “as a non-commercial passenger, transport-

category, general aviation reliever airport”. The 2010 Plan

discussed the capacity constraints at Stapleton Interna-

tional and the necessity for a new air carrier airport to be

in operation by the mid-1990’s in order to meet future

projections.

In December 1991, DRCOG published the Regional

Aviation System Planning Program Data File. The prepara-

tion of this document was financed in part through a

continuing aviation system planning grant from the FAA.

In this document Centennial “is categorized as a non-

commercial passenger, transport category, G.A. reliever”.

The document also stated: “Stapleton International Air-

port is the only airport in the region serving certified

airlines and providing short and long-haul scheduled

passenger and cargo service.”

10. The FAA Aviation Forecasts published October

1990 by the Forecast Branch, Office of Aviation Policy and

11

Pians of the FAA, contains forecasts of aviation activity in

the Denver-Boulder “Hub”. In this publication, Centen-

nial: is described as a reliever airport for Stapleton Inter-

national and reliever airports are defined as:

“metropolitan area general aviation airports which serve

to reduce air carrier airport congestion by providing facil-

ities and service suitable for attracting and diverting

general aviation activity away from major air carrier air-

ports.” The publication describes Stapleton International

as the designated air carrier airport in the Denver region.

It is also stated in this document that:

The Denver Stapleton airport facility is sched-

uled to close in late 1993 in conjunction with the

opening of the new Denver International Air-

port (‘DVX’) in Adams County. It is expected

that most of the GA activity and based aircraft

now operating at DEN will move to the Front

Range, Centennial, or Jefferson County airports.

It is expected that the new airport will have only

limited facilities available for the handling of

GA aircraft (i.e., no Fixed Base Operator) and

that GA activity destined for DVX will be

encouraged to utilize the facilities of other

reliever airports in the Denver CMSA.

11. On March 4, 1991, the Secretary of Transporta-

tion submitted to the United States Senate and the House

of Representatives the National Plan of Integrated Air-

port Systems (“NPIAS”) 1990 - 1999, as required by

§ 504(a) of the Airport and Airway Improvement Act of

1982. The NPIAS sets forth state summaries and individ-

ual airport data. Under primary and commercial service

systems for Colorado, Denver new and Denver Stapleton

12

International are listed with their reliever airports, Cen-

tennial, Jeffco, Front Range, and new. Under reliever and

general aviation system for Colorado, Centennial is listed

for the years 1990-1994, and for the years 1995-1999 as a

Reliever Airport, Transport Type.

ACPAA did not receive a response to its 1993 letter

for seventeen months.

In the interim, on April 8, 1994, CEA filed with

ACPAA an amended application. This application sets

forth a proposed operation for 30-seat aircraft to five

major cities with seventeen departures per day.

On August 7, 1994, a shareholder of CEA filed a

complaint with the FAA against ACPAA. The shareholder

complained about ACPAA actions dating from 1985,

which actions denied access to scheduled passenger ser-

vice, and also that such actions violated ACPAA’s grant

agreements with the FAA.

On September 8, 1994, ACPAA adopted, revised and

restated Minimum Standards for Commercial Aeronauti-

cal Activities (“Minimum Standards”). These Minimum

Standards define Centennial’s “Airport Purpose” as:

any Authority action, undertaking or develop-

ment that is consistent in maintaining the non-

certificated status of the Airport and in preserv-

ing the Airport funding category as a ‘Reliever

Airport’ serving general aviation users. Under

no circumstances shall the Airport Purpose

include scheduled passenger services.

8 ACPAA first adopted Minimum Standards on February 5,

1981.

13

On December 20, 1994, CEA, in violation of the Mini-

mum Standards, initiated scheduled passenger service

between Centennial and Dalhart, Texas. ACPAA filed suit

against the airline and obtained a Temporary Restraining

Order on December 22, 1994.

On December 23, 1994, ACPAA finally received a

letter from the DOT in response to the 1993 letter (“DOT

letter”). The DOT letter noted the filing of the share-

holder’s complaint in August 1994 and the understanding

that the FAA was docketing the complaint. The DOT

letter noted that CEA had commenced scheduled pas-

senger service over ACPAA’s objections. The DOT letter

also noted: “In addressing similar cases in the past, FAA

has found it arbitrary to exclude any particular class of

service due to factors that are not reasonably related to

the impacts of that service.” The DOT letter then

addressed the 1993 letter, the materials submitted, and

ACPAA’s obligations under its grant agreements. The

DOT letter continued by stating:

Although the material that you submitted states

that approval of scheduled service would

increase the number of operations and pas-

sengers at Centennial Airport, there was insuffi-

cient information submitted with your letter to

demonstrate that a restriction of any particular

category of operation could be adequately sup-

ported. For example, although individual fac-

tors are not alone likely to be dispositive, your

letter does not discuss the nature and extent of

any resulting environmental impact, congestion,

or effect on airport facilities such as the terminal

or parking, that would result from the initiation

of scheduled service... .

14

Permanent injunction hearings were held on January

3, 5 and 6, 1995. Among the witnesses testifying was Mr.

Isbill, the airport engineer responsible for the design,

engineering and coordination of the construction of Cen-

tennial. Mr. Isbill testified that from the beginning in 1965

or 1966 until the hearing in January 1995, there had not

been any design consideration for scheduled air carriers

or the impact they may have on the airport or the facili-

ties they may require. The design was for general avia-

tion operations. This witness also testified that if a

commercial service airport was designed, there would be

several differences in the ground site design. He “would

have planned a terminal area and set aside auto parking,

auto access lighting, and some type of security.” The

witness also identified the design concerning baggage

and ticketing facilities, and the absence of all of these

previously described elements from Centennial.? Finally,

9 Jim Dunlap, Deputy Director of Aviation/Operations for

DIA testified at the November 1998 FAA Hearings. There are

108 daily departures from DIA from four airlines that provide

the same type of service that was proposed by CEA at

Centennial. For these operations DIA provides concourse

parking, jetways (in some cases), security screening for the

passengers and the entire realm of support from snow removal

and maintenance to ground transportation services and

parking. Also, DIA would not allow these 108 daily departures

without a passenger terminal, without a baggage system,

without a ticketing system, without adequate parking and

without security personnel. Further, Mr. Dunlap testified that

airport rescue and firefighting is important to the safe operation

of the airport because if a piece of equipment isn’t at the site

within 3 minutes with dry chemical or foam, the chances are

that the aircraft is already in flames and it is too late to rescue

the passengers.

15

the witness testified that the present annual capacity of

Centennial Airport is 525,000 operations.’°

Allowing one scheduled passenger operation at Cen-

tennial would require ACPAA to allow any other quali-

fied commercial air carrier to commence operations. The

Colorado Supreme Court recognized this legal principle

and stated:

Centennial Express has ambitions to become

much larger. Opening Centennial’s doors to

Centennial Express would also require the

Authority to make Centennial available to other

airlines who wish to provide scheduled pas-

senger service. See 49 U.S.C. §47107(a)(4) (1994)

Arapahoe County Public Airport Auth., 956-P. 2d at 596.

James DeLong, the Director of Aviation at DIA, testi-

fied at the District Court injunction hearing as follows:

Hobby was originally the air carrier airport until

1969, when the City of Houston built a new

Houston Intercontinental facility. From 1969

until the mid-’70’s, it was a pure general avia-

tion reliever airport, and it was always the

intent of the community that all air carrier activ-

ity occur at the other facility. In the mid-’70’s, a

small airline by the name of Southwest thought

it might be appropriate to try one airplane fly-

ing to and from Dallas and Hobby airport. I

think they either had one or two flights a day,

but don’t quote me on that because it predated

10 In 1998 total operations at Centennial were 466,267. In

1999 total operations were 436,081. In 2000 projected operations

are 474,000.

4

Se

me by about three years. No one noticed it ini-

tially. I was the airport manager in 1979 at

- Hobby and responsible for it until about 1987. In

1989, there were about 4 million passengers

going through Hobby, because once Southwest

got a toehold, every other airline that served

Houston had to go into that market simply

because the competitive advantage of that air-

port being so close to the center of the city was

such that they had no choice, and I understand

in 1993, I think they processed over 9 million

passengers through Hobby airport.

On January 10, 1995 ACPAA obtained a Permanent

Injunction Order against the Airline. The trial court found

that: (1) Centennial is approaching its capacity; (2) cur-

rent FAA policy would allow a general aviation reliever

airport such as Centennial to ban scheduled passenger

service if Centennial was in a multi-airport system under

one owner; (3) local, regional and national planning has

designated Centennial as a general aviation reliever air-

port in a multi-airport system; and (4) such planning is

consistent with and the functional equivalent to the

FAA’s policy that allows multi-airport proprietors to ban

scheduled passenger service at a general aviation reliever

airport in order to maintain the attractiveness of the

general aviation reliever airport to general aviation.

The Permanent Injunction Order also states that Cen-

tennial is not designed to accommodate scheduled pas-

senger service. If scheduled passenger service had been

intended, Centennial would have been designed with a

terminal, baggage system, adequate security and ade-

quate parking.

ciel

17

On April 9, 1998, four days before the Colorado

Supreme Court ruling, and in what ACPAA considers a

related matter, ACPAA adopted a Resolution containing

an additional basis for the ban on scheduled passenger

service. This Resolution arose out of an application for a

public charter operation which ACPAA determined to be

a scheduled passenger service operation. This additional

basis is the National Transportation Safety Board’s

(“NTSB”) recommendation that scheduled passenger ser-

vice be permitted only at airports certificated pursuant to

14 C.FR. Part 139. Centennial is not certificated pursuant

to 14 C.FR. Part 139. Centennial does not have on-the-

airport fire and rescue capabilities.

On April 13, 1998, the Colorado Supreme Court

issued its opinion in Arapahoe County Public Airport Auth.

v. Centennial Express Airlines, Inc., 956 P. 2d 587 (Colo.

1998).

On August 21, 1998, notwithstanding the planning,

funding and design of Centennial for over 30 years as a

general aviation reliever airport, the existence of adminis-

trative complaints against ACPAA since 1994, and the

FAA’s contemporaneous knowledge of the state court

litigation from inception to-conclusion, the FAA deter-

mined that ACPAA could not ban scheduled passenger

service. ACPAA was stripped of its eligibility to apply for

discretionary federal grant agreements. ACPAA appealed

the decision."

At the FAA hearings, ACPAA’s Commissioner wit-

ness testified that there were no plans by ACPAA to make

11 See footnote 6, supra.

18

any design changes to Centennial with respect to a pas-

senger terminal, adequate parking, adequate security or a

baggage system. Further, there were no plans by ACPAA

to change Centennial’s role as designated in DRCOG’s

regional planning. He also testified that the previous

Board denied regularly scheduled passenger service and

the current Board continues to do so. There is no ability,

either from an infrastructure or financial perspective, to

do other than ban regularly scheduled passenger service.

With respect to the proposed volume of scheduled pas-

senger service as set forth in CEA’s May 1993-application,

it would be devastating to the character of Centennial.

¢

CONCLUSION

_ ACPAA accepts the consequences of maintaining its

role as a general aviation reliever airport — there will be |

no future federal funding. ACPAA, however, agrees with

and supports the Petitioner. If use restrictions, around

which restrictions an airport is planned, funded and

designed, can be invalidated years later, local govern-

ments and their populace will be reluctant to support the

construction of new airports. When the FAA retroactively

ignores its statutory mandate set forth in 49 U.S.C.

§40101(8) and 49 U.S.C. §47101(g), to coordinate with

local and regional planning, the FAA, and not the local

19

owner and operator, constitutes the greater obstacle to a

continued, viable national aviation system.

June 1, 2000

Respectfully submitted,

RONALD S. Loser, Esa.

BRIAN A. Macoon, Esa.*

Breca & Winters P.C.

1700 Lincoln Street, Suite 2222

Denver, Colorado 80203-4522

(303) 866-9400

*Counsel of Record

Counsel for Amicus Curiae

Arapahoe County Public

Airport Authority