UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

RECEIVED 

AUG 3 2015 

National Business Aviation Association, Inc., et 

al. PART 16 DOCKETS 

Complainants, FAADocketNo. 16-15-08 

v. 

Town of East Hampton, NY 

Respondent. 

RESPONDENT TOWN OF EAST HAMPTON, NEW YORK'S 

REPLY IN SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT 

Designation of persons to receive service for the Town of East Hampton, New York: 

Elizabeth Vail 

Town Attorney 

Town of East Hampton 

159 Pantigo Road 

East Hampton, NY 1193 7 

EV ail@EHamptonNY. Gov 

W. Eric Pilsk 

Catherine van Heuven 

Kaplan Kirsch & Rockwell LLP 

1001 Connecticut Ave., NW, Suite 800 

Washington, D.C. 20036 

epilsk@kaplankirsch.com 

cvanheuven@kaplankirsch.com 

Telephone: (202) 955-5600 

Facsimile: (202) 955-5616 
In its response to the Town of East Hampton, New York's (the "Town") Motion to 

Dismiss the Complaint, Complainants raise new factual issues not raised in the Complaint and 

raise baseless legal arguments to which a brief reply is appropriate. 1 

I. COMPLAINANTS FAIL TO STATE A CLAIM FOR A VIOLATION OF 

ASSURANCE 23 

In their Answer brief, Complainants present evidence that a new helicopter operator is 

now offering service at East Hampton Airport ("Airport") with aircraft that are not "noisy" under 

the Town's Local Laws. Complainants use this evidence in an attempt to salvage their exclusive 

rights claim by arguing that this new operator is evidence of the requisite anti -competitive effect. 

Complainants Response at 4-5. But that new information does not raise even a colorable issue 

under Assurance 23. 

The FAA has determined that in order to find a violation of Assurance 23, a complainant 

must "prove that an anti-competitive result would occur if the Ordinance were implemented." 

Final Agency Decision, In the Matter of the City of Santa Monica, FAA Docket No. 16-02-08, at 

51 (May 14, 2009). The fact that additional service has been added at the Airport simply 

underscores that competition has not been harmed. The fact is that no entity is prohibited from 

operating at the Airport and that no entity is granted an exclusive right. Moreover, nothing in the 

Local Laws, or any other Town law or policy, prohibits any operator, including Complainants, 

from operating at the Airport with compliant aircraft. No operator is permitted to exclude any 

other operator. No monopoly is created and competition is fully preserved. This is not a case, 

Although Part 16 does not expressly provide for a reply in support of a Motion to Dismiss, Part 16 does not 

prohibit replies either. In this case, because Complainants have introduced new evidence in their answer to the 

Town's Motion to Dismiss, a brief reply is warranted to rebut that evidence and introduce additional authority to 

rebut issues raised in Complainants' answer. Consideration of this short reply will not lengthen the proceedings or 

prejudice the parties. Complainants also state that they did not receive a copy of the Town's Motion to Dismiss until 

July 8, 2015. However, the Town hand delivered a copy of the Motion to Dismiss to NBAA's office at 1200 G 

Street, NW, Suite 1100, Washington, D.C. shortly after 9:00a.m. on June 25, 2015. The Motion was left with the 

receptionist. The Town has no knowledge of what happened to the package after that. 

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like a lease, where an airport sponsor grants one or more entities control of a limited airport 

resource or right to conduct business which necessarily excludes others. The Local Laws apply 

equally to all Airport users and provide the same opportunities and limitations for all. 

Complainants present absolutely no evidence that the Town intended to exclude any specific 

operator or group of operators and grant an exclusive right of access by other operators. And, in 

fact, there is no such evidence. The Local Laws are neutral, noise-based rules intended to 

address a local noise problem. They do not limit competition at the Airport and do not confer a 

monopoly on any operator. NBAA's complaint, even if treated as amended, simply does not 

state a claim under Assurance 23. 

Finally, Complainants argue that the Director should ignore the Final Agency Decision in 

Santa Monica because it is an "outlier" that has not been widely cited or relied upon. But 

Complainants fail to point to any FAA decision of any kind that overturns Santa Monica or that 

repudiates its findings. Nor can they. The fact is that Santa Monica rests on a careful and 

thorough reading of the statutory and legislative basis of the prohibition against exclusive rights 

to conclude that Assurance 23 is not the mirror image of Assurance 22, and requires an 

additional showing of anti-competitive effect akin to a monopoly. E.g., Mot. to Dismiss at 5-7. 

That position was articulated not just by the Final Agency Decision, but by the Hearing Officer, 

and both decisions rejected the "mirror image" theory relied upon in the Director's 

Determination. !d. Moreover, Santa Monica, like this case, involved an access restriction and is 

therefore more applicable to this case than the cases cited by Complainants. The Director cannot 

simply ignore Santa Monica, as Complainants urge. To the contrary, the Director is bound by 

the Final Agency Decision in Santa Monica. The fact that Santa Monica has not been widely 

cited or relied upon in other cases does not make it incorrect. In any event, the Town is 

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affirmatively relying on Santa Monica here, and Complainants have failed to provide any legal 

basis for ignoring or reversing that decision. 

II. COMPLAINANTS FAIL TO STATE A CLAIM FOR A VIOLATION OF 

ASSURANCE 25 

Complainants' case for revenue diversion rests on the simplistic notion that an airport 

operating rule that restricts access for noise purposes cannot be considered to advance an airport 

purpose. From that premise, Complainants argue that airport operators may not spend airport 

revenue to defend an access restriction. But Complainants do not cite any authority for that 

proposition for the simple reason that there is none. The fact is that access restrictions have long 

been recognized as permissible, and Complainants cite no example where an airport operator was 

not permitted to use airport revenue to defend such measures. 2 The authority to which 

Complainants cite is inapposite; they address only cases in which airport revenue was spent for a 

non-airport purpose, such as acquiring land that could never be used for an airport purpose or 

closing an airport altogether. Moreover, Complainants' argument is particularly misplaced here 

where there has been no final determination that the Local Laws are unlawful in any way. 

Indeed, the recent decision by Judge Seybert in Friends of East Hampton Airport v. Town of East 

Hampton demonstrates that there are strong arguments that the Local Laws are lawful. 

Finally, Complainants' argument regarding legal fees has been implicitly rejected by 

Department of Transportation in Final Decision, Second Los Angeles International Airport Rates 

2 E.g., Naples v. FAA, 409 F.3d 431 (D.C. Cir. 2005) (upholding Stage 2 ban as reasonable under Grant 

Assurances); Nat'/ Helicopter Corp. of Am. v. City of New York, 137 F.3d 81 (2d Cir. 1998) (upholding curfew and 

weekend ban on helicopters); Alaska Airlines v. City of Long Beach, 951 F.2d 977 (9th Cir. 1991) (upholding overall 

cap on number of commercial operations and curfew on noisy aircraft); Global Int'l Airway Corp. v. PANYNJ, 727 

F.2d 246 (2d Cir 1984) (upholding restriction on operations by noisy aircraft); Nat'/ Bus. Aviation Ass'n v. City of 

Naples Airport Auth., 162 F. Supp.2d 1343 (M.D. Fla. 2001) (upholding ban on noisy aircraft); Arrow Air, Inc. v. 

Port Auth. of New York and New Jersey, 602 F. Supp. 314 (S.D.N.Y. 1985) (upholding ban on noisy aircraft); Santa 

Monica Airport Ass'n v. City of Santa Monica, 481 F. Supp. 927 (CD. Cal. 1979), aff'd, 659 F.2d 100 (9th 

Cir.l981) (upholding curfew, weekend helicopter training ban, ban on noisy aircraft, and certain touch and go 

operations). 

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Proceeding, Docket No. OST-95-474 (Dec. 22, 1995). That case involved legal fees associated 

with the defense of the airport's rates and charges and legal fees incurred in defending 

allegations of revenue diversion. Even though some of the underlying charges were found to be 

revenue diversion, the Department allowed the legal fees to be included in the rate base, stating: 

"we do not view the overall defense of the police department charges [much of which were 

found to be revenue diversion] as equivalent to diversion." Id. at 49. The Department drew a 

clear distinction between funds illegally diverted (impermissible use of airport funds) and funds 

spent to defend the charge of diversion (permissible use of airport funds). Similarly here, the 

Town's use of airport revenue to defend the Local Laws is a permissible use of Airport revenue, 

even if the Local Laws are ultimately struck down on some basis or another. 

To hold otherwise would place airport operators in the untenable position of having to 

secure non-airport sources of revenue any time an airport action is challenged as contrary to 

grant assurances or other law. Such a rule would effectively require airport operators to seek 

pre-approval from the FAA for controversial measures and/or for retaining outside legal counsel 

to avoid being placed in a financial bind. That would represent a major change in the current 

relationship between the FAA, airport operators, and airport users that has no basis in current law 

or the grant assurances. Complainants' parochial focus on preventing the Town from defending 

its Local Laws should not create a precedent that will hamstring the ability of airport operators 

nationwide to obtain legal counsel to defend against challenges to airport actions. 

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For the foregoing reasons, the Town's Motion to Dismiss should be granted. 

Respectfully submitted this 3d day of August, 2015. 

Elizabeth Vail 

Town Attorney 

Town of East Hampton 

159 Pantigo Road 

East Hampton, NY 1193 7 

EV ail@EHamptonNY. Gov 

W. Eric Pilsk 

Catherine van Heuven 

Kaplan Kirsch & Rockwell LLP 

1001 Connecticut Ave., NW, Suite 800 

Washington, DC 20036 

epilsk@kaplankirsch.com 

cvanheuven@kaplankirsch.com 

Telephone: (202) 955-5600 

Facsimile: (202) 955-5616 

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CERTIFICATE OF SERVICE 

I hereby certify that I have this 3d day of August, 2015, served the foregoing 

Respondent Town of East Hampton, New York's Reply in Support of Its Motion to Dismiss 

the Complaint on the following parties by hand delivery and email at the following addresses: 

Office of the Chief Counsel 

Attn: FAA Part 16 Airport Proceedings Docket, AGC-61 0 

Federal Aviation Administration 

800 Independence A venue, SW 

Washington, D.C. 20591 

Steve Brown 

Chief Operating Officer 

National Business Aviation Association, Inc. 

1200 G Street, NW 

Suite 1100 

Washington, D.C. 20005 

Dated this 3d day of August, 2015. ~~ W. Eric Pilsk 

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