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Airport Access—A Vital Part of USPA’s Mission

A USPA Staff Report

Features | July 2020
Wednesday, July 1, 2020

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One of USPA’s most vital functions in pursuit of its mission to “support skydiving and those who enjoy it” is safeguarding skydiving’s rightful place in the national airspace system, which includes public airports. USPA and its Government Relations Department work closely with current and potential drop zone owners, as well as the Federal Aviation Administration, to advocate for our sport’s legitimate piece of the national airspace system.

Over the years, USPA has helped countless members through the process of opening a drop zone. Sometimes this process goes smoothly, with welcoming support from airport management and local communities. Oftentimes, however, the process results in a pitched battle that may drag on for years as a DZ proponent and USPA work to win access to an airport whose owner is reluctant.

USPA also has gotten involved in cases where an already open and operating DZ sees its relations with airport management, local government or surrounding residents go sour. Then the DZ has to fight tightening restrictions or fee increases often meant to force the operator to throw in the towel and move elsewhere. Occasionally a DZ battle involves use of the airspace, which the FAA solely controls but local jurisdictions sometimes claim. USPA almost always favorably resolves these issues by working directly with the air-traffic division within the FAA.

USPA’s AAD Fund

In 1991, USPA started the Airport Access and Defense Fund, financed solely by donations. USPA uses this fund to help Group Member DZs and individual members offset the legal fees and other costs associated with battling for airport access. Upon receiving an application to the AAD Fund, the USPA Board of Directors applies several criteria in deciding whether to allocate money to a specific effort. First, USPA decides if the case is winnable. One of the other key considerations is whether a win in a particular case will set important precedent that may help future skydiving operations.

Not every airport access case receives USPA support. In some instances, DZOs choose not to work with USPA. In other cases, USPA determines that the DZOs’ specific cases are either not supportable, not winnable or won’t set favorable precedent for skydiving overall.

Over the years, the USPA Board of Directors has broadened the use of the fund to fight against initiatives that harm the sport, not just specific DZs. Thanks to the donations of skydivers over the years, USPA has spent more than $271,000 preserving skydiving’s rights. The AAD Fund currently has more than $344,000 in reserve.

Federal Airport Grants

There are some 19,000 public and private landing areas in the U.S—everything from heliports, gliderports and seaplane bases to short grass strips to major airports with multiple 10,000-foot runways. Of the total, only 5,136 airports are open to public use; the rest—the great majority—are for private or personal use. Among the public airports, about 3,332 are registered with the FAA and eligible for federal grants from the FAA’s Airport Improvement Program, which funds capital improvements like runways, taxiways, airport lighting, navigational aids, terminal buildings, etc. Of the 265 DZs of all sizes in the U.S., the large majority are located on public-use airports and the remaining few are on private- or personal-use airports.

Airports deemed by the FAA as eligible for federal funds generally serve a community, don’t have safety issues and are able to expand. For the most part, a public entity like a municipality or airport authority —known to the FAA as an “airport sponsor”— must own and operate the airport. The grant money for airport improvements comes from aviation users, mainly in the form of federal taxes on aviation fuels and on airline tickets. General aviation operators, including jump aircraft operators, currently pay 19.4 cents per gallon for avgas and 21.9 cents per gallon for jet fuel.

In return for an airport grant, the FAA requires airport sponsors to maintain and operate their airport safely and efficiently for a 20-year period and in accordance with specified conditions. An airport owner agrees to a list of 39 specific obligations when receiving a federal airport development grant, including requirements for proper maintenance and operation of airport facilities, adherence to the approved airport layout plan, compliance with civil rights requirements and much more. For this reason, federally funded airports are also known as “obligated airports.”

Of the 39 grant assurances, there are two that almost always come into play when a skydiving business is denied access to an airport:

Grant Assurance 22, Economic Nondiscrimination—the airport sponsor agrees to “make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport.” Crucially, the FAA recognizes skydiving as a legitimate aeronautical activity, meaning that skydiving businesses cannot be arbitrarily or unfairly denied access to an airport that has received federal funds. However, airports can act to restrict certain activities for reasons of safety or efficiency of the airport, but only after receiving approval from the FAA. Airports with a high volume of jet traffic might successfully make this argument in denying access to skydiving, though some have tried and failed.

Grant Assurance 23, Exclusive Rights—The airport sponsor “will permit no exclusive right for the use of the airport by any person providing, or intending to provide, aeronautical services to the public.” In other words, the airport sponsor can’t protect one existing business by denying another.

When an airport isn’t meeting its grant assurances, any affected airport user can complain to the FAA that the airport is in violation of its grant agreement and have the FAA investigate. If the FAA determines an airport is in violation, it can require the airport to correct its actions or be subject to forfeiture of its federal grant funds.

Over the past several decades, USPA has participated in countless airport-access battles, most of them ending with the opening of a new drop zone or the continuation of a DZ under threat of closure.

Part 16 Complaints

Prior to 1996, the FAA’s only complaint-resolution process was found in Part 13 of Title 14 of the Code of Federal Regulations. Known as a “Part 13 process,” complaints triggered a mediation effort by local FAA officials. The trouble was, the FAA is a poor mediator; complaints were rarely resolved, and airports often got away with unfair treatment of aeronautical users.

In 1996, the FAA unveiled a new Part 16 complaint process. This complaint procedure is more formal than the Part 13 process, which still exists as an option. The difference is that under the Part 16 process, FAA attorneys and other officials at FAA Headquarters are responsible for gathering the facts, assessing the viewpoints of both parties and making a final determination that upholds the grant agreement. The Part 16 complaint process has been far more effective in ensuring that the FAA addresses scenarios where obligated airports are not meeting their grant obligations, but it is far from perfect and can take take two, three or even more years to reach completion. Although strict timelines for participants are built into the process, ironically, the FAA regularly issues itself extensions for making a final determination.

USPA and Part 16s

Some airport managers want to deny access for our sport because skydivers simply don’t fit their idea of who their airport should serve. When an airport decides to deny access to a skydiving operation, it’s often under the guise of safety concerns, meaning that the airport believes skydiving activity will create a hazard to other users of the airport or will create airport delays. In almost all of these cases, those concerns are ill-informed and just an excuse to reject skydiving. When denied access, the skydiving operator can file a Part 16 complaint.

Part 16 mandates that only those who are directly affected by an airport’s actions can file a complaint. That leaves USPA out as a complainant; DZOs or prospective DZOs must file the Part 16 complaint themselves. Some do so after consulting and strategizing with USPA; others decide to proceed without USPA assistance.

Since 1996, USPA has assisted with eight Part 16 complaints, winning six outright and having two dismissed. Notching a Part 16 win doesn’t necessarily result in a DZ opening at an airport. The several years’ delay—and the intervening legal expense—between filing a Part 16 complaint and getting a favorable determination often changes the proponent’s circumstances or priorities. Still, a favorable Part 16 determination strengthens skydiving’s rights on airports and often provides precedent useful to future DZs.

Each case has brought important lessons to strengthen skydiving’s stance for the future. Following is a history of the skydiving-related Part 16s in which USPA has participated.

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Glyn Johnson d/b/a Zoo City Skydivers vs. Yazoo County, Yazoo County Port Commission, Mississippi 

In 1994, a drop zone opened at the Yazoo County Airport in Mississippi. In early 2000, Glyn Johnson bought the DZ. Within a few months, the airport claimed that the DZO was ignoring a host of requirements and the airport withdrew permission for the DZ to operate.

By June, there was a new agreement but problems continued, leading to the airport’s March 2001 revocation of permission for parachuting and amendment of the Airport Minimum Standards to state, “No sport parachute landings may be made at the airport.”

In July, the FAA conducted a flawed safety study of skydiving at the airport and in its conclusion said, “Based on the fact that two federal airways lie over and east of the airport, the airport has four instrument approaches, the mix of slow to very fast aircraft and the proximity to a federal prison, it would not be prudent to establish a sport landing zone on this airport.”

The DZO filed a Part 16 complaint in July 2004. USPA became involved out of concern that it would set a bad precedent to have the FAA rely on the flawed study. In September 2005, USPA convinced the FAA to commission a more objective safety study, which concluded, “The airspace in and around the Yazoo County Airport could be safely shared by parachutists (skydivers) and other aeronautical activities.”

In the end, the DZO withdrew his complaint and it was dismissed. In the published conclusion, the FAA ruled against the DZO based on his personal violations of airport polices. However, the FAA also ruled that the airport’s “reasons for prohibiting use of the established drop zone are not supported by the record. FAA determines that the airport can safely accommodate an on-airport drop zone.” The FAA also concluded that an airport “has no role in enforcing Part 105 [the section of the Federal Aviation Regulations overseeing skydiving] or making safety determinations as to the safety of parachute jumping operations … It is not appropriate for [the airport] to justify restrictions on the grounds of compliance with Part 105.” Although this specific case was dismissed, the FAA rightly claimed preemption in decisions related to aviation safety, an important precedent for future cases.

Skydive Paris, Inc. vs. Henry County, Tennessee

Former U.S. Army Golden Knight Johnny Reyes started Skydive Paris at the Henry County, Tennessee, airport—a federally obligated airport—in 1994. The airport granted two separate landing areas—a larger one for students and a smaller one for licensed skydivers—that both conformed with USPA Basic Safety Requirements for landing areas. In early 2004, the airport withdrew permission for use of the two landing areas, citing a lack of space and an increase in aircraft operations. At the DZO’s request, USPA became directly involved.

In June, at the request of both the airport and the DZO, the FAA conducted an onsite safety review. In July, the FAA concluded that the airport “could reasonably and safely accommodate the drop zones.” The airport refused to consider reinstating the DZ’s permission, and in May 2005 the DZO filed a Part 16 complaint with the FAA, alleging the airport pursued unjust discrimination by denying skydiving. In the ensuing Part 16 filings by both parties, the airport tried to assert that skydiver landings in the runway’s obstacle-free areas created a hazard to aircraft. (OFAs exist to keep runways and shoulder areas where aircraft may be operating free from above-ground, stationary objects.)

The FAA ruled against the airport, finding that skydivers are afforded “the same operational latitude given to aircraft in flight or while taxiing.” In a January 2006 Director’s Determination—lighting fast for a Part 16—the FAA found the airport’s safety concerns to be unfounded and the airport’s denial of skydiving a violation of the grant assurance prohibiting economic discrimination. The airport was slow to negotiate, but Skydive Paris signed a new lease agreement and resumed jumping on July 8, 2006.

Part 16 precedent: Skydivers are afforded the same uses of an airport as are provided to aircraft; skydivers are not prohibited from landing in active areas of an airport.

Skydive Sacramento v. the City of Lincoln, California

Skydive Sacramento DZO Pat Garcia began operations from the Lincoln Regional Airport in October 2007 by renting a hangar and office space but using an off-airport landing area while simultaneously starting negotiations for an on-airport landing area. In April 2008, the airport responded that an on-airport landing area would not be appropriate as it would be unsafe but did not explain how it would be unsafe. In November 2008, the city requested an FAA safety assessment of an on-airport landing area. Within one day, the FAA issued a favorable safety finding indicating an on-airport landing area could be safe by incorporating nine operational practices and conditions. In December 2008, the city presented a draft lease agreement, which the two parties attempted to negotiate over the next seven months and which became the basis for the DZ’s claim of non-compliance based on unreasonable terms and unjust economic discrimination.

In July 2009, after continued resistance by airport management, Skydive Sacramento filed a Part 16 complaint with the FAA following unsuccessful negotiations related to the city’s liability insurance requirement in its draft lease. The airport, while acknowledging that operational liability insurance for skydiving is not commercially available, required it anyway. In May 2011, the FAA found that the city’s requirement of an unattainable, non-existent insurance provision constituted an unreasonable denial of access to Skydive Sacramento and was in violation of the grant assurance that prohibits economic discrimination by an airport.

Part 16 precedent: Airports cannot impose unreasonable requirements, including unreasonable insurance requirements, on proposed drop zones.

Jeff Bodin and Garlic City Skydiving v. the County of Santa Clara, California

In April 2009, Jeff Bodin proposed opening his Garlic City Skydiving at the South County Airport. Due to pushback from airport management, several FAA offices conducted safety reviews of the proposal between 2009 and 2011, and all determined that skydiving could be safety conducted at the airport. After the County of Santa Clara still denied airport access due to safety concerns, Garlic City Skydiving filed a Part 16 complaint in June 2011. In December 2011, the FAA Director’s Determination found that the airport could safely accommodate an on-airport drop zone and, by refusing a request to establish a drop zone, the county engaged in economic discrimination by unreasonably denying access to the airport, which is a violation of Grant Assurance 22.

After Garlic City Skydiving prevailed in its complaint, the County of Santa Clara appealed the determination. Twenty months later, in August 2013, the FAA affirmed its initial Director’s Determination of a Grant Assurance 22 violation.

Part 16 precedent: The FAA, which found the airport to be safe for parachuting, remarked that its expertise holds greater weight than the opinion of the airport sponsor. The FAA also found that “prohibiting an on-airport drop zone, because it may expose the [airport] to additional liability, is unreasonable.”

Urban Moore and Eugene Skydivers v. the City of Creswell, Oregon

Urban Moore and his Eugene Skydivers started operations at the Creswell Airport in 1992 with an on-airport landing area. In 2006, airport management decided that parachute landings on the airport weren’t safe. After negotiations to resume on-airport landings failed, Eugene Skydivers filed a Part 16 complaint in December 2011. In February 2014, three years after the complaint was filed and just weeks before the expected FAA Director’s Determination was to be issued, city administrators offered to settle the dispute. The city acquired state-owned property adjacent to the airport for the DZ to use as the landing area. The DZ continues to use that property. 

Part 16 precedent: Because the Part 16 was not completed, there is no precedent from the action. However, the city’s offer to settle prior to a final determination reveals that airports have learned that USPA-supported Part 16s favor skydiving’s right of access.

Frank Hinshaw, Skydiving School, Inc., d/b/a Skydive Hawaii and Island Skydiving, LLC v. the State of Hawaii

In July 2007, Frank Hinshaw and Skydive Hawaii proposed to establish a new drop zone at the state-owned Hana Airport on the Island of Maui. The airport sponsor, the Hawaii Department of Transportation, requested that several FAA offices conduct safety studies. In November 2007, the FAA advised HDOT that skydiving could be conducted safely at the airport. Still, the state fully employed bureaucratic inaction to maximum effect. The state finally denied the proposal by claiming that it didn’t have the necessary airport rules and regulations in place, even though the state had allowed a helicopter operator on the airport without any airport rules and regulations. In February 2012, Hinshaw filed a Part 16 complaint against the State of Hawaii.

In August 2014, the FAA Director’s Determination found that “by granting an exclusive right for one aeronautical activity to operate at Hana Airport in the absence of state-approved operating rules and standards while denying another aeronautical activity the same privilege, the State of Hawaii has acted in an unreasonable and discriminatory manner.”

Part 16 precedent: An airport cannot deny skydiving by claiming not to have the appropriate airport rules and regulations while not acting to adopt them. Nor can an airport allow one operator to operate without airport rules but deny another because there are no airport rules. Importantly, the FAA also ruled that an airport’s unreasonable delay in responding to or negotiating with a drop zone proponent was itself a form of denial that is discriminatory and unjust.

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Luther Kurtz and Skydive Coastal California d/b/a Phoenix Area Skydiving v. the City of Casa Grande, Arizona

In 2006, Luther Kurtz and Phoenix Area Skydiving began operating at the Casa Grande Airport while utilizing an off-airport site for parachute landings. In October 2013, Kurtz proposed a parachute landing area on the airport. In July 2014, the airport manager responded and denied the proposal by stating that the proposed parachute landing area created safety concerns. In August 2014, Kurtz submitted an FAA Part 13 informal complaint, attempting FAA mediation. In February 2015, the FAA conducted a flawed study that concluded that the airport “does not support the proposed parachute operation.” Kurtz objected to the study, and in July 2015 the FAA performed a new safety assessment that concluded that with mitigations, the overall risk level of a parachute operation at the airport was in the low to medium range. The airport held firm with its denial.

In December 2015, Kurtz filed a Part 16 complaint against the City of Casa Grande, citing the FAA safety assessment that found that skydiving could occur safely with mitigation measures in place. The complaint also alleged that the airport sponsor created an exclusive right for other airport users by preventing the skydiving business from operating at the airport. The FAA Director’s Determination, issued in December 2017, concluded that the Casa Grande Municipal Airport could safely accommodate an on-airport parachute landing area with the proposed mitigation measures; that the prohibition of an on-airport DZ created a violation of Grant Assurance 22, Economic Nondiscrimination; and that by denying the skydiving business use of the terminal, the airport sponsor created an exclusive right for other similarly situated aeronautical users, therefore violating Grant Assurance 23, Exclusive Rights.

The City of Casa Grande appealed the determination. In its November 2018 Final Agency Decision, the FAA affirmed its initial Director’s Determination of Grant Assurance 22 and 23 violations.

Part 16 precedent: The FAA determined that the record and the FAA’s own safety assessment did not support the city’s claims of risk and reduced safety. FAA safety assessments take precedent over assessments by airport sponsors. Also, the DZ business should not have been denied access to the terminal building, which created an exclusive right for other businesses that were granted terminal access.

Michael Pelzer and Pegasus Parachuting Services v. the State of Michigan

In February 2015, Michael Pelzer and Pegasus Parachuting Services proposed a skydiving business at the Romeo State Airport in Michigan. The State of Michigan owned the airport and a contracted company managed it.

For more than a year, Pelzer attempted to negotiate a lease for a hangar, ramp space and a parachute landing area. During negotiations, airport management continually changed conditions, including insurance requirements, and escalated the proposed fees. In July 2015, Pelzer proposed a temporary operation at the airport’s stated fees, while other details were worked out. Airport management denied the temporary proposal. In February 2016, Pelzer filed a Part 16 complaint with the FAA.

The FAA issued its Director’s Determination in May 2018, finding the state in non-compliance with Grant Assurance 22 by allowing economic discrimination, saying the airport “failed to provide the complainant a clear set of requirements for leasing and commencing skydiving operations” and “did not behave in a transparent manner during the leasing negotiations.” The FAA found that this acted as a barrier for airport access and that prohibitions against temporary commercial operations such as skydiving are inconsistent with the Federal obligations.

Part 16 precedent: Airport sponsors cannot deny access to skydiving by creating unnecessary delays or because it is a seasonal or temporary business.

All of these cases have helped the sport of skydiving maintain its legitimate access to airports and airspace. Working with DZOs, USPA continues to fight for the right to conduct skydiving at airports across the country, helping secure our freedom to enjoy the sport we love so much.

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