Skydive Academy of Hawaii Corp. d/b/a Skydive Hawaii and Frank Hinshaw v. State of Hawaii – No. 16-23-06
FAA Docket No:
16-23-06
Author:
Michael W. Helvey, Director, Office of Airport Compliance and Management Analysis
Complainant(s):
Skydive Academy of Hawaii Corp. d/b/a Skydive Hawaii and Frank HinshawRespondent(s):
State of HawaiiAirport(s):
Kawaihapai Airfield a/k/a Dillingham Airfield (HDH)
Holding:
No Violation of Grant Assurance 22, Economic Nondiscrimination, or Grant Assurance 23, Exclusive Rights; Recommendation of Revision to Nighttime AccessAbstract:
Complainants, Skydive Academy of Hawaii Corp. d/b/a Skydive Hawaii and Frank Hinshaw, filed a Part 16 complaint against the State of Hawaii (“State”), which was the lessor, operator, and sponsor of Kawaihapai (Dillingham) Airfield (HDH), a joint-use airport (i.e., an airport owned by the U.S. Department of Defense at which both military and civilian aircraft make shared use of the airfield). Complainants alleged that the State violated Grant Assurance 22, Economic Nondiscrimination, and Grant Assurance 23, Exclusive Rights, by requiring tenants to obtain prior written permission for access to the airport between 7 p.m. and 7 a.m. to perform maintenance activities. (Director’s Determination, p. 1.) Complainants also suggested potential violations of Grant Assurance 5, Preserving Rights and Powers, and Grant Assurance 19, Operations and Maintenance, based on the same restrictions. (Director’s Determination, p. 1.)
The State denied these claims, stating that all requests for nighttime access in recent years had been granted and that the prior permission policy was reasonable and necessary given the airfield’s unique circumstances. (Director’s Determination, p. 1.)
As a preliminary matter, the Director evaluated whether the State violated any of its legal obligations by accepting the U.S. Army’s assessment that nighttime military training operations at the airfield were incompatible with or could endanger civilian activities. (Director’s Determination, p. 7.) Complainants argued that the State provided no explanation for how performing maintenance on its aircraft would interfere with the Army’s training activities (Director’s Determination, p. 7.), claiming that “the State has provided no explanation of how civilian aviation maintenance and repair activities would conflict with military flight operations … .” (Director’s Determination, p. 7.)
Further, Complainants argued that the FAA was the final arbiter of safety and had not assessed or made a determination on the safety related to the Army’s training activities and simultaneous aircraft maintenance or other civilian use. (Director’s Determination, p. 7.)
The State countered that the Army’s lease clearly stated that its operations “may… create a hazard to civil aircraft operations” and that Army declarations confirmed its training required complete darkness to avoid interference. (Director’s Determination, p. 7.) The State also argued that Complainants offered no evidence to contradict the Army’s assessment and emphasized that the Army retained authority over its own airfield operations. (Director’s Determination, p. 7.)
While noting that FAA regulates civilian aviation safety, the Director ruled that the FAA does not assess or override the Army’s safety determinations for its training activities at its airfield. (Director’s Determination, p. 8.) The Army had the right to establish safety requirements to protect its missions, and the State acted appropriately in following those requirements. (Director’s Determination, p. 8.) The Director concluded that the FAA could not substitute its safety judgment for that of the Army and that the State’s acceptance of the Army’s assessment did not violate its grant obligations. (Director’s Determination, p. 8.)
Grant Assurance 22, Economic Nondiscrimination—Prior Permission to Perform Aircraft Maintenance Activities from 7 p.m. to 7 a.m.
First, Complainants asserted that the State’s lease with the Army did not prioritize military operations over civilian aeronautical activities. (Director’s Determination, p. 9.) Rather, the lease listed three “priorities”—military flight operations, civil aviation and parachuting, and military ground maneuvers. (Director’s Determination, p. 8.) These “priorities” are not ranked with respect to each other, and according to Complainants, any interpretation granting military priority would conflict with the State’s federal obligations. (Director’s Determination, p. 9.)
Second, Complainants argued that the prior permission requirements to conduct aircraft maintenance in its leased hangar was unreasonable and violated Grant Assurance 22, Economic Nondiscrimination. (Director’s Determination, p. 9.) In this respect, the Complainants made the following claims:
- The 7 p.m. to 7 a.m. (nighttime) prior permission requirements to conduct aircraft maintenance in the leased hangar were unreasonable. (Director’s Determination, p. 9.) Complainants argued that aircraft maintenance is considered an aeronautical activity covered by the grant assurances by stating “Skydive Hawaii requires nighttime access to its premises in order to perform repair and maintenance work—which is unquestionably an aeronautical activity. (Director’s Determination, p. 9, citing Minimum Standards for Commercial Aeronautical Activities, Advisory Circular 150/5190.7, Appendix 1, § 1.l(a) (August 28, 2006)).
- Additionally, its license did not specifically require prior permission for nighttime aeronautical activities, and even if it did, the State has a responsibility to meet its federal obligations associated with accepting federal funds to develop the airfield. (Director’s Determination, p. 9.) Complainants also argued that, “[a]lthough the ‘Special Conditions’ to the license do note that the airfield on occasion may be closed for military exercises, there is not even the slightest suggestion therein that Skydive Hawaii would be unable to access its premises at HDH 50% of the time, and irrespective of whether any military activities are actually occurring.” (Director’s Determination, p. 9.)
- Complainants asserted that the State policy provided no explanation or criteria for when a request would be denied, and although it had not been denied in recent years, it was still a violation of the grant assurances.
- Complainants argued that the State denying all administrative functions at night is unreasonable. “Skydive Hawaii respectfully posits that maintenance-related record-keeping and similar ‘administrative’ activities have a direct relationship to the operation of aircraft and should be deemed an aeronautical activity.” (Director’s Determination, p. 9.)
- Finally, Complainants noted that “[t]he burden [having to request permission to access at night] is not just the procedures to communicate with the State but the associated uncertainty which interferes with the Complainants’ ability to plan and operate their aeronautical business.” (Director’s Determination, p. 9.)
To support their position, Complainants filed a motion to supplement the record with materials obtained via a Freedom of Information Act request, including a letter showing FAA comments on earlier lease negotiations. (Director’s Determination, p. 9.) They argued that the letter demonstrated FAA’s position that the lease could not permit the Army to impose restrictions inconsistent with federal obligations, undermining the State’s justification for its policy. (Director’s Determination, p. 9.)
The State argued that it was simply following the lease agreement with the Army that prioritized military nighttime operations over civilian use at Dillingham Airfield, and its actions simply reflected those terms. (Director’s Determination, p. 10.) The State emphasized that this priority had always been part of the lease agreements and development plans and cited a 2011 FAA Part 13 determination affirming that the Army, as the airport owner, could reserve preferential rights, and civilian operators must accommodate those rights. (Director’s Determination, p. 10.) The State also rejected the interpretation of the lease by the Complainants that the mutual understanding between the State and the Army controlled its obligations. (Director’s Determination, p. 10.) It described the lease as unique, with strict conditions imposed by the Army as a prerequisite to allowing civilian operations, and argued that none of the Part 16 cases cited by Complainants addressed such a situation (i.e., where the Army has reserved for itself a priority of use for nighttime activity and has required the state to assure that priority of use). (Director’s Determination, p. 10.)
On the claim that the prior permission rule violated Grant Assurance 22, the State asserted that the requirement was reasonable, minimally restrictive, and consistent with its obligations under Grant Assurances 19 and 22(h) to ensure safety and efficient operation. (Director’s Determination, p. 10.) It emphasized that the rule, incorporated into the permit issued to Complainants, had been in place for over a decade and would only restrict access during actual military training. (Director’s Determination, p. 11.) The State also pointed to a declaration, confirming that ensuring that no civilian activity compromised military operations was essential to any lease. (Director’s Determination, p. 11.)
The State argued that the rule was not a blanket ban but a safety measure, and it noted that the requests for nighttime access had never been denied. (Director’s Determination, p. 11.) Administrative tasks, it claimed, could be done during daytime hours, and the State had no obligation to accommodate nonaeronautical functions at night. (Director’s Determination, p. 11.) It described the permission process as not a burden but rather a simple process, involving only a call, email, or text, with minimal burden or risk of denial given the limited civilian need for nighttime access. (Director’s Determination, p. 11.)
Responding to Complainants’ motion to supplement the record, the State contended that FAA documents supported its stance, showing FAA’s longstanding recognition that civilian and military nighttime operations at the airport were incompatible and that leases with the Army must reflect this. (Director’s Determination, pp. 11–12.) It also cited previous FAA precedent holding that a prior permission rule that does not actually deny access does not violate Grant Assurance 22. (Director’s Determination, p. 12.)
Director’s Determination
The Director reviewed the leases governing the airport and determined that they explicitly prioritized military operations over civilian use, supporting the State’s interpretation. (Director’s Determination, p. 12.) A 1976 lease restricted civilian nighttime operations outright, while a 1983 lease replaced this with explicit priority for military flight operations, followed by civilian aviation and parachuting. (Director’s Determination, p. 12.) A 2009 lease retained this structure, and supplemental agreements did not alter the terms. (Director’s Determination, p. 12.) The Director concluded that, given the Army’s ownership of the airport, it was reasonable and intentional that military operations be prioritized, and the State’s enforcement of these terms on all civilian tenants was neither discriminatory nor exclusive. (Director’s Determination, p. 12.)
On the prior permission policy, the Director acknowledged that the operative lease itself did not require a 7 p.m. to 7 a.m. access restriction or prior permission rule, but the State implemented the policy to manage safety and separation of civilian and nighttime military activity. (Director’s Determination, p. 14.) The FAA’s Part 13 determination had earlier advised the State to make the policy clearer and more transparent but did not find it inherently unlawful. (Director’s Determination, p. 14.) The Director also noted that FAA precedent discourages prior permission rules, except in narrow, safety-based situations, but found this policy justified because it applied only at night and denials were limited to times when military training posed hazards. (Director’s Determination, p. 14.)
The Director emphasized that joint-use agreements must balance military needs with reasonable civilian access, and restrictions for safety are common in such arrangements. (Director’s Determination, p. 15.) The record showed no evidence that nighttime access was denied, and the Complainants admitted their requests had never been refused. (Director’s Determination, p. 15.) Thus, the Director found the State’s policy reasonable, safety-driven, and consistent with Grant Assurance 22, and determined that the Complainants failed to prove discrimination compared to other tenants. (Director’s Determination, p. 15.)
The Director concluded that the State’s policy separating nighttime military training from civilian use at the airport was not the only way to achieve its goals and recommended that the State adopt a more transparent and flexible approach. (Director’s Determination, p. 15.) The Director noted that the State already allowed “special groups” to request advance access for specific dates and suggested applying this system to aeronautical tenants, such as Complainants, to give them greater predictability. (Director’s Determination, p. 15.) Because the State received monthly reports from the Army about planned training closures, it could share this schedule with tenants to help them plan activities, while acknowledging that unscheduled Army operations could still require changes. (Director’s Determination, p. 16.)
Regarding the claim that nighttime administrative work was prohibited, the Director declined to determine whether administrative functions qualified as aeronautical activity but stressed that the restriction’s purpose was safety. (Director’s Determination, p. 16.) Given that nonaviation groups were allowed nighttime access under certain conditions, tenants should not face stricter limits, provided their activities were safe and within permit terms. (Director’s Determination, p. 16.) The Director strongly recommended revising the policy to include clear criteria for denying access and to improve flexibility, aligning the policy with FAA guidance for balancing joint-use agreements with federal obligations. (Director’s Determination, p. 16.)
Grant Assurance 23, Exclusive Rights
Complainants claimed that the State had violated Grant Assurance 23 due to its unreasonable access requirements including “constructive exclusive rights derived from unjust economic discrimination.” (Director’s Determination, p. 16.) The State denied the claim that its policy to require prior permission at nighttime was unjustly discriminatory or granted an exclusive right. (Director’s Determination, p. 17.)
The Director concluded that the State’s policy requiring Complainants to request permission for nighttime access did not violate Grant Assurance 23, Exclusive Rights, because the Army, as owner of the airfield, had the right to prioritize military training over civilian use. (Director’s Determination, p. 17.) All civilian tenants were subject to the same access requirements, and Complainants provided no evidence of disparate treatment. As a result, no exclusive rights violation was found. (Director’s Determination, p. 17.)
The Director also determined that the State was not in violation of Grant Assurance 22, Economic Nondiscrimination, for the same reasons, though the Director encouraged the State to revise its nighttime access policy to be clearer and more flexible, enabling tenants to better plan operations and understand the circumstances under which access requests would be denied. (Director’s Determination, p. 17.)