Skydive Myrtle Beach, Inc. v. Horry County Department of Airports, South Carolina – No. 16-14-05
FAA Docket No:
FAA Docket No. 16-14-05
Westlaw Cite:
735 Fed. Appx. 810 (4th Cir. 2018)
Author:
Eduardo A. Angeles, Associate Administrator for Airports
Complainant(s):
Skydive Myrtle Beach, Inc.Respondent(s):
Horry County Department of Airports, South CarolinaAirport(s):
Grand Strand Airport (CRE), South Carolina
History:
See also Director's Determination dated 10/7/15.
Holding:
Affirming Director’s Determination (Complaint dismissed).Abstract:
Complainant, Skydive Myrtle Beach, Inc. (“SDMB”), a skydiving operator, alleged that the County’s attempts to restrict a landing area—“Drop Zone” or “DZ”—and its reporting violations as “safety concerns” were unreasonably restrictive and discriminatory as applied to an FAA-recognized aeronautical activity—skydiving. The Complainant characterized these actions by the County as “spurious enforcement mechanisms that greatly exceed FAA regulations and guidance … [and that the County] has utilized all the powers of government to remove SDMB from CRE in a discriminatory and illegal manner that is contrary to federal and state law.” (p. 1, Director’s Determination.) SMDB also alleged that several actions by the County were unreasonable and unjustly discriminatory, and contended that the County’s actions constituted “harassment.” (p. 1., Director’s Determination.)
In response, the County denied that its actions were contrary to its federal obligations and argued, instead, that they were consistent with these obligations. The County affirmed that “SDMB currently uses CRE as a base of operations for its skydiving business, and … uses a designated [DZ] located at the airport property,” but after its use permit “for use of Hangar 7 … expired on January 31, 2014, SDMB has … refused to enter into a valid Space Use Permit for the use of the hangar.” (p. 2, Director’s Determination.) The County added that SDMB also had refused to comply with the standards and procedures to conduct safe skydiving operations; SDMB “has been unable to ensure that its skydivers consistently land within the designated [DZ]” and has failed to “contact the [ATCT, Air Traffic Control Tower] before crossing active runways or taxiways.” (p. 2, Director’s Determination.) Finally, the County rejected SDMD’s claims that its actions to ensure safety were “harassment or discrimination.”
The Director found that the County’s actions were not in violation of Grant Assurance 22, Economic Nondiscrimination, and that “actions by the County concerning the use of the airport’s DZ and related procedures, such as reporting safety incidents and deviations, [were] consistent with its safety obligations contained in Grant Assurance 22(h). (p. 2.) “However … the Director has determined that skydiving operations at CRE are taking place despite unresolved safety deficiencies … therefore, the Director [found] that the County must take additional corrective actions to correct those safety deficiencies to ensure compliance with Grant Assurance 19.” (p. 2.) Specifically, the Director found that the “County must take immediate action such as closing the existing parachute DZ and rescinding related approvals until acceptable risk mitigation measures and revised procedures are considered and implemented.” (p. 2.) The Director continued that unless these steps were taken, “the County [would] be considered to be in violation of Grant Assurance 19.” (p. 66.)
The Complaint appealed, raising two issues: (1) did the FAA violate the Complainants’ due process rights when it received evidence ex parte from the Respondent and refused the Complainant’s FOIA requests for all documents in FAA possession relating to skydiving operations at CRE; and (2) was the FAA Director’s Determination arbitrary, capricious, and an abuse of discretion, in violation of the Fifth Amendment Due Process Clause of the United States Constitution, 4 U.S.C. § 557(d) of the Administrative Procedures Act, and 14 C.F.R.§ 16.303 when it relied on facts and evidence not properly submitted into the Part 16 proceedings and received ex parte.
Treating the two issues on appeal as essentially the same argument, the Associate Administrator rejected the Complainant’s argument that the Director relied on improper ex parte communications, facts, and evidence in making his formal determination. (Final Agency Decision, p. 8). The FAA evaluated various internal and external correspondence, and in doing so, “the FAA exercised its statutory and regulatory duties to investigate known or potentially unsafe operations at CRE and/or to communicate such concerns internally with appropriate FAA stakeholders … While an FAA investigation of an airport sponsor may be related to the merits of an ongoing proceeding under Part 16, the various components of an investigation do not themselves constitute a prohibited ex parte communication. Again, the results of this investigation were included in the record, and thus provide an opportunity for the parties to respond under the part 16 appeals procedures.” (Final Agency Decision, p. 8.)
Finally, the Associate Administrator concluded that “the Director’s Determination under Grant Assurance 22 [was] not arbitrary, capricious, or an abuse of discretion. The Director’s findings are supported by reliable, probative, and substantial evidence and are made in accordance with applicable law, precedent, and policy.” (Final Agency Decision, p. 8.)
The Complainant ultimately sought review of the FAA’s final decision affirming the dismissal of its claims of economic discrimination, but the claim was dismissed as untimely. See Skydive Myrtle Beach, Inc. v. Horry County Dep’t of Airports, 735 Fed. Appx. 810 (4th Cir. 2018).