Luther Kurtz and Skydive Coastal California d/b/a Phoenix Area Skydiving v. City of Casa Grande, Arizona – No. 16-16-01
FAA Docket No:
FAA Docket No. 16-16-01
Author:
Winsome A. Lenfert, Acting Associate Administrator for Airports
Complainant(s):
Luther Kurtz and Skydive Coastal California, d/b/a Phoenix Area SkydivingRespondent(s):
City of Casa Grande, ArizonaAirport(s):
Casa Grande Airport (CGZ)
History:
See also Director's Determination dated 12/20/17. See also Kurtz v. Federal Aviation Admin., 2022 WL 605673 (9th Cir. 2022) (concluding that the court lacked subject matter jurisdiction because neither a letter from the FAA conditionally approving a corrective action plan nor a letter then clarifying such plan constituted a final, reviewable order by the FAA).
Holding:
Finding violation of federal law and federal grant obligations.Abstract:
Complainants alleged that the sponsor of a public use, general aviation airport was unjustly discriminating economically against it by refusing to allow a Parachute Drop Zone (“PDZ”) on the airport, even though an FAA safety assessment determined that skydiving could occur safely with mitigation measures in place. The Complainants also alleged that the airport sponsor created an exclusive right by preventing the skydiving business from having offices at the airport.
The Respondent noted that the Complainants had used an off-airport parachute landing area since 2006 and that the two on-airport PDZs the Complainants had proposed at the airport were unsafe (i.e., the first was located in the grass area between the airport’s single runway and taxiway, while the second was routinely used by flight schools in the area and was a functional drainage basin that was adjacent to the taxiway and required skydivers to pass directly into the missed approach pathway) (Director’s Determination, p. 2.)
The Director issued a determination on December 20, 2017. In evaluating whether the sponsor had violated Grant Assurance 22, Economic Nondiscrimination, the FAA Director “did not accept the Respondent’s assertion that there are no areas on the airport that can safely accommodate a Parachute Drop Zone. While the FAA agrees with the Respondent that some of the areas identified as potential Parachute Drop Zones on the aerial photograph are likely unsafe for skydiving, the second FAA safety assessment identified a location on the airport suitable as a safe on-airport Parachute Drop Zone.” (Director’s Determination, p. 19.) “FAA safety determinations pursuant to the Federal Aviation Regulations take precedent over an airport sponsor’s views on safety and local ordinances or local actions taken in regard to safety.” (Director’s Determination, p. 20.)
“In summary, the Director finds that the City of Casa Grande is in violation of Grant Assurance 22, Economic Discrimination [sic], for not attempting to reasonably accommodate skydiving at the airport. The Respondent must reasonably accommodate skydiving operations by permitting an on-airport Parachute Drop Zone for tandem skydivers. The Respondent must also provide the FAA Western Pacific Region Airports office a corrective action plan with benchmarks to implement the recommended mitigation measures, and to allow access to the public terminal and ramp areas for all commercial aeronautical activities, including skydiving operations.” (Director’s Determination, p. 21.)
Finally, the Complainants alleged that the Respondent had implemented a de facto policy of prohibiting skydiving by denying office space, denying an on-airport PDZ based on unfounded safety risks, refusing to negotiate with the Complainants on procedures to integrate skydiving into the airport operations, and creating a committee of unidentified stakeholders to discuss the PDZ proposal without including the Complainants. (Director’s Determination, p. 21.) The Respondent contended that the Complainants failed to provide sufficient evidence to meet their burden of proof on this issue. However, the Director determined that, “[b]y denying Complainants the commercial use of the terminal for customer queuing and loading, the Respondent has created an exclusive right for other similarly situated aeronautical users and has violated Grant Assurance 23, Exclusive Rights.” (Director’s Determination, p. 23.)
Accordingly, the Director ordered the City of Casa Grande to present a corrective action plan to the FAA Phoenix Airports District Office, detailing how the City intended to return the airport to compliance with federal grant obligations concerning access on reasonable terms and conditions without unjust discrimination by accommodating parachute operations, including tenant space and use of public areas. (Director’s Determination, p. 24.)
The City appealed, arguing that the Director’s findings were not supported by the evidence contained in the record. The Complainants countered that the FAA found that skydiving could be safely conducted at the airport and that the City had “failed to provide evidence to the contrary” and that the “evidence in the record clearly shows that the City unreasonably denied airport access as well as denying office space to Complainants in violation of Grant Assurances 22 and 23.” (Final Agency Decision, p. 1.) In affirming the Director’s Determination, the Acting Associate Administrator wrote, “[t]he Director did not order or direct that parachute operations be permitted at the airport regardless of impacts, nor did he ignore evidence. Rather, the Director determined that with the appropriate mitigations, which were developed using a detailed and thorough FAA Flight Standards safety and risk management evaluation process … and used as part of the Director’s Determination, skydiving can safely take place at the airport. As part of this process, the impact on operational procedures and efficiency were [sic] considered and addressed.” (Final Agency Decision, p. 7.)
Additionally, the Acting Associate Administrator agreed with the City’s objection to the Director’s finding of a violation “because he determined that the City did not make it clear” what Complainants could or could not do at terminal. (Final Agency Decision, p. 9.) However, “Although the Associate Administrator finds that arguably there could be some level of ambiguity between the City’s position and the Director’s finding, this ambiguity is nullified by clear evidence in the record. Complainants were unambiguously denied access when the City readily admits that Complainants can only ‘utilize the terminal for non-aeronautical related activities,’ and when other users, commercial and non-commercial, aeronautical and non-aeronautical, are granted access. The City’s actions in denying a commercial aeronautical activity is excluding Complainants from commercial operations involved [sic] the terminal and the City has taken no action to mitigate or nullify what is a factual terminal access restriction.” (Final Agency Decision, p. 9.)