Guest Opinion: With the airport it always comes back to - 'our hands are tied'

See original article here.

The Airport and the City’s Proprietary Powers
City council members come from all walks of life. The common thread among members is the desire to give back and improve the quality of life for residents - and the willingness to give up many evenings in that pursuit. Being an attorney is not a requisite for council members, thus reliance upon relevant legal counsel is key.

A decision was made March 12 by the Colorado Court of Appeals regarding Superior and Boulder County’s lawsuit addressing aircraft noise and lead-based-fuel impacts from certain operations at Rocky Mountain Metropolitan Airport. In its ruling, the court relied on the U.S. Supreme Court decision in City of Burbank v. Lockheed Air Terminal Inc., which held that, because the FAA has exclusive jurisdiction over the navigable airspace of the United States, federal law generally preempts local government regulation of aircraft noise using the Police Powers (state court), to the extent that regulation restricts the operation of aircraft in flight. The court however, acknowledged that local governments may have authority to adopt certain noise restrictions themselves using their Proprietary Powers, as airport owners (proprietors). This Proprietary Powers exception to preemption is a recognition that airport proprietors can be held liable for damages resulting from noise and other pollution at their airports, so proprietors must have the power to limit those nuisances to avoid liability. However, the court determined that a state court cannot compel the proprietor to exercise that authority through a court injunction, because that would involve the court ordering the proprietor to limit the operation of aircraft in flight, which is exclusively within the FAA’s jurisdiction. So, Superior and Boulder County residents may have a right, but they don’t have a remedy. JeffCo’s position effectively is: “I might be able to stop this nuisance, but you can’t make me.”

Did the Court of Appeals get it wrong? It’s entirely possible. Superior officials are currently reviewing the decision and evaluating whether to seek further review by the Colorado Supreme Court.

The good news seems to be that a city like ours could use its Proprietary Powers to rein in the public nuisance caused by the out-of-town training school planes using Longmont as their dumping ground for touch-and-go operations, right? Not if you listen to Longmont’s outside legal counsel, Kaplan Kirsch, the same firm who represents JeffCo. That law firm’s “advice” was  recently echoed in comments from council member Jake Marsing:

“First, federal law still preempts most regulation of aircraft in flight, especially around noise. Second, because Longmont has accepted FAA funding over the years, we’re bound by grant assurances that require the airport to be available on reasonable and non-discriminatory terms. Any restriction, like limiting touch-and-go operations, would have to fit within those rules and would very likely be challenged through a federal process…That said, I do hear the quality-of-life concerns, and I take them seriously. There are areas where I think we can make meaningful progress, like improving compliance with existing [voluntary] noise abatement procedures, looking closely at what policies are clearly within the City’s authority, continuing to push on unleaded fuel, and making better use of data to understand what’s actually happening.” 

Notice what is missing in his empty condolences: there is no mention of the City’s Proprietary Powers to regulate noise at our airport. Longmont apparently takes the position that it gave up those powers in exchange for FAA grant money.

Once again we’re told – our hands are tied.

Kaplan Kirsch does not represent the citizens of Longmont. They represent the City, the municipal corporation. We pay their fees, only to have them advise the City to tell us there is nothing the City can do to protect the public health and safety from this onslaught of noise and lead. And, since they represent JeffCo they are unlikely to take public stances that contradict what they are saying to the courts. I say we stop paying for a firm that is acting as an advocate for JeffCo’s “you can’t make me protect the public health and safety” argument.

Otherwise, it always comes back to – our hands are tied.