Naples Stage 2 lawsuit rejection a major setback for NBAA/GAMA

 - November 27, 2007, 6:16 AM

NBAA and the General Aviation Manufacturers Association (GAMA) are mulling their next move after a surprise loss in their lawsuit against the Naples (Fla.) Airport Authority over its ban of Stage 2 jets at Naples Municipal Airport (APN).

A U.S. District Court judge in Florida dismissed the court challenge–which was filed by NBAA in late December and later joined into by GAMA–“with prejudice,” which means that the plaintiffs (NBAA and GAMA) are barred from bringing an action on the same claim. But they do have the right to appeal the decision.

The NBAA/GAMA case did not directly address the validity of the Stage 2 ban; rather it argued that the methods used by the Naples Airport Authority (NAA) to support the ban violated both the supremacy clause and the commerce clause of the U.S. Constitution. Essentially, the former provides that federal law supersedes all other law, while the latter limits state regulatory power affecting interstate commerce.

Under the Airport Noise and Capacity Act (ANCA) of 1990, airport operators are permitted to ban Stage 2 aircraft, subject to certain requirements. The two associations contended that these requirements include reasonableness and nondiscrimination, and because NAA failed to meet those requirements, the ban should be pre-empted under federal law.

With respect to the commerce clause, NBAA and GAMA argued that the same standards of reasonableness and nondiscrimination should be used for analyzing the authority’s actions as they would affect interstate commerce.

The case had been scheduled to go to trial August 20, but judge Gregory Presnell issued a “summary judgment” in favor of the airport authority. He ruled that NBAA/GAMA “failed to raise a genuine issue of material fact” as to the reasonableness or nondiscriminatory nature of the authority’s ban on Stage 2 operations and whether it restricts out-of-state economic interests in favor of in-state interests.

NBAA characterized the decision as “definitely a big loss for us,” and GAMA said it was “not pleased with the result.” At press time, the two associations had a meeting pending with the FAA to discuss the NAA noise study and how a Stage 2 ban could affect APN’s federal grant agreements.

“We are not ruling out anything,” said Ron Swanda, v-p of operations for GAMA. “But we certainly disagree with the judge’s decision, which was only on constitutional grounds. He did not get into the reasonableness of any of the standards that may or may not have been selected. He just said that it’s the FAA’s job to do that.”

“We disagree with the judge’s opinion and are examining our further legal options,” said NBAA president Jack Olcott. “The court’s ruling also does not foreclose the [FAA] from pursuing its administrative remedies against the airport.”

The ban was supposed to go into effect on January 1. But in a letter dated December 27, the FAA had asked the authority to defer enforcement of the ban pending the FAA’s review of what it perceived to be serious irregularities in the process leading up to the ban. Facing the lawsuit by NBAA and GAMA and under scrutiny by the FAA, the airport authority enacted a resolution on February 7 not to enforce its ban.

The FAA questioned the methods used by NAA in its FAR Part 161 noise study. Calling it imperfect and incomplete, the agency ordered the airport authority to reopen it to comply fully with the federal statute.

The FAA took issue with NAA’s original submission, including the use of a 60-dBA noise standard in its measurements of aircraft noise footprints rather than the nationally accepted standard of 65 dBA. Further, some of the conditions of the ban were added either after the Part 161 comment period had expired or with insufficient time remaining.

When it filed its lawsuit in December, NBAA said the authority’s own studies show that there is not a single non-compatible use within the 65-dBA contour around the airport, which is the national standard. It accused the authority of changing the ground rules by taking the contour out to the 60-dBA line, an area where there is ongoing residential construction.

Under Part 161, airports that receive federal funds must agree not to apply “unjustly discriminatory” restrictions on different types of aircraft operation. Earlier, the FAA expressed a tentative view to the airport that a Stage 2 ban would violate federal grant assurances and other federal requirements. “We are not favorably inclined to a total ban on a class of aircraft,” said Lynne Picard, manager of the FAA’s community and environmental needs division. “This is a very big deal.”   

Responding to the ruling, GAMA president Ed Bolen observed, “The court’s decision could mean the airport will be closed to an entire class of users.”

In his legal opinion, judge Presnell noted that over the years, the Naples authority has implemented a variety of measures intended to reduce aircraft noise or its effects on Naples residents, including encouraging quieter operating procedures by jets landing at the airport, preferential use of runways to reduce flight operations over residents and a ban on nighttime runups. But APN noise complaints persist, he said.

Explaining in a footnote that federal law already bans Stage 2 aircraft weighing more than 75,000 lb, Presnell wrote: “To further reduce the noise associated with the airport, the authority has opted to ban the remaining Stage 2 jet aircraft–those under 75,000 lb–from operating at the Naples Municipal Airport as of Aug. 30, 2001 [the delayed enforcement date].

“The authority based this decision at least in part on concerns about noise impact on areas that experience an average of 60 to 65 decibels (dB) across the course of a day. For this and other reasons, NBAA contends that the ban violates both the supremacy clause and commerce clause of the U.S. Constitution.” But Presnell ruled that NBAA and GAMA did not prove their case.

NAA is not out of the woods yet. It also faces a lawsuit from a jet charter operator, and once it amends its noise study it faces a 45-day public comment period and a 180-day notification period. And it has yet to hear anything further from the FAA.