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January 5, 2016



### VIA CERTIFIEDMAIL- RETURNRECEIPTREQUESTED and VIA E-MAIL 9-AWA-AGC-Part-16@/aa.gov Office ofthe ChiefCounsel Attention: Sharon Long AGC- 600 Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 Adrian A. Miller Phone (406) 896-4612 Fax (406) 206-0081 AAMiller@hollandhart.com

Re: Part 16 Complaint: SaferMedical ofMontana and GeorgeAckerson v. City ofFortBenton, Montana, Chouteau County,Montana, and Chouteau County JointAirportBoard FAA DocketNo. 16-15-12
To Whom it may concern: Safer Medical ofMontana and George Ackerson ("Complainants") file this reply to the City ofFort Benton's and Chouteau County's ("Defendants") motions to dismiss the Complaint in the above-referenced docket. A. Complainants engaged in good faith settlementnegotiations. Defendants completely ignore the settlement negotiations which took place between April 15,2015 and October 1, 2015, when the Complainants worked with the Chouteau County Joint Airport Board (the "Board"). In fact, as noted in Section D ofthe Complaint, the Complainants removed a cabin on theirproperty and altered plans for their project. Complainants also made promises, inwriting, that the land would notbe used for nonaeronautical purposes. Complainants cooperated with the Board in its drafting ofa June 23, 2015 letterto the FAA, which detailed all ofthe actions takenby Complainants and included a signed letter from Complainants' counsel. See Compl., at Ex. D. 1

1Importantly, this June 23rd letter requested that the FAA grant an "exemption from the 1998 agreement for the lease given to Safer Medical" and allow the Lease to be renewed. /d. The term "exemption" was the term utilized by Defendants in the letter, and the "exemption" described was not granted.

Holland& Hart LLP Phone [406]252-2166 Fax [406]252-1669 www.hollandhart.com 401 North 31st Street Suite 1500 Billings, MT 59101 Mailing Address P.O. Box 639 Billings, MT 59103-0639 Aspen Boulder Carson City Colorado Springs Denver DenverTech Center Billings Boise Cheyenne Jackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington, D.C. 0

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As a result of the June 23rd letter, Joe Nye, an Airport Project Manager for the Helena Airport District Office ofthe FAA, responded on October 1, 2015 and acceptedthe solutions proposedjointlyby Complainants and the Board. Defendants' allegation that Complainants did not attempt good faith settlement negotiations overlooks this entire history where Complainants worked with the Board and the FAA to essentially fix Defendants' mess. The Board was negligent in allowing Complainants to conduct construction, withthe Board'sfull knowledge, that ultimately did not complywith certainAirport Sponsorship Assurances. The Board neglected its duties to actually understand, follow, and enforce those assurances. Complainants fully cooperated with the Board to resolve the issues detailed inthe May 20, 2015 letter form Mr. Nye to Defendants, which explained the City and County's violation oftheir Airport Sponsorship Assurances. Mr. Nye's letterwas not addressed to Complainants. 

### It was correctly addressed to the City and County because they were the entities who had violated the Airport Sponsor Assurances. Complainants still cooperated, at their own expense, to help the City and County correct its mistakes. However, Complainants could notfix Defendants' negligence in entering into the Lease with Complainants in the first place. Defendants, against the express terms ofthe 1998 Agreement, gave a Lease to Complainants. Mr. Nye has refused to allowrenewal ofthe Lease, even though the express provisions ofthe Lease include the option ofrenewal. Defendants can also not fix the fact that otherusers ofthe Fort Benton Airport ("Airport"), including Andy Taylor, are also violating Airport SponsorAssurances, with Defendants' full knowledge and apparent consent. Defendants' suggestion that Complainants shouldhave engaged amediator or arbitrator, when Mr. Nye was involved in the process from the beginning, is a red herring. Unless Defendants are suggesting that Complainants could have forced the FAA to submitto arbitration or mediationto resolve Defendants' violations ofAirport Sponsor Assurances, a dispute resolution process would have been meaningless. Defendants have focused on a final offer ofsettlement, which was sent after Complainants spent six months engaging in good faith negotiations with Defendants at significant cost. The final offer ofsettlement was sent in hopes that Complainants couldprevent further negligence and future violations ofAirport Sponsor Assurances at the Airport. As explained in the Complaint, Defendants continue to allow lessees at the Airportto operate in violation ofAirport Sponsor Assurances. Since Defendants have violated the Airport Sponsor Assurances, and continue to knowingly do so, Complainants sent a final settlement offerwith the hopes thatthe wrongful actors may step down from theirpositions. Although Complainants' acknowledge that the offer was unusual, there was nothing wrong with it. Parties settle disputes frequently on non-monetary terms that may be unavailable ifthose same parties engaged in a

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court or agency process. Complainants' ultimate goal is to ensure that Defendants complywith the Airport Sponsor Assurances, andthe final settlement offer was aimed at this same goal. Importantly, this final settlement offer was only sent after Complainants ceased construction, went to numerous Board meetings to negotiate and work withDefendants over a six monthperiod, removed a cabin from the property, drained and boarded over a pond, and cooperated in drafting a letterto Mr. Nye to help resolve Defendants' violations. All ofthese actions demonstrate that Complainants engaged in good faith negotiations with Defendants prior to filing a Complaint. B. Complainants do not lack standing to file their Complaint. The County further alleges that Complainants lack standing to file their Complaint. The County conveniently ignores a substantial portion ofthe facts at issue. As already discussed in Section B ofthe Complaint, Defendants have allowed other lessees- including Taylor Aviation, Inc.

- to operate a non-aeronautical business at the Airport and to have favorable leaseterms unavailable to Complainants. There is no doubtthat Defendants' failure to follow the 1998 Agreementwhen they granted the Lease to Complainants was a violation ofthe Airport Sponsor Assurances. Mr. Nye has already found as much. Butthe true violation is the economic discrimination which results from this violation. · Complainantshave a Lease, which was subjectto renewal when executed, that is now not subject to renewal. In otherwords, the express provisions ofthe Lease are useless. While Mr. Taylor has similar leases, his leases will continue to be renewed when they expire. In fact, the Boardhas never refusedto renew a lease ifthe lessee requests a renewal. Until now. Mr. Taylor invested a substantial amount ofmoney making improvements to his leasedproperty at the Airport for his business. Similarly, Complainants have spenthundreds ofthousands ofdollars improving their leasedproperty for their future business oftraining pilots. The difference, of course, is that Complainants' money was essentially wasted because they will no longerbe able to access their Hangar- eventhough they have a deed stating thatthey ownit- after February 2023. Meanwhile, Mr. Taylorwill continue to utilize his property as he sees fit, withthe full benefit ofthe improvements he has made. Complainants have obviously been "substantially affected" by Defendant's violation ofthe Airport Sponsor Assurances and have standing to bring the Complaint. Defendants have failed to answer any ofthe substantive allegations in the Complaint

- likely because there is no good explanation. Defendants have, for example, failed to explain why Mr. Taylor can operate a non-aeronautical business selling commercial spraying chemicals out of his numerous hangars. Meanwhile, Complainants had to write a letterpromising not to utilize theirproperty for any non-aeronautical purposes and drain a pondto help Defendants resolve their violations with Mr. Nye. Complainantshave actually neverutilizedtheirproperty for any non-aeronautical use purpose, unlike Mr. Taylor. Defendants have also failed to explainwhy

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Mr. Tayloris allowedto have an apartment in his hangar, butComplainants hadto remove similar accommodations, eventhough nobody has ever stayed overnight at Complainants' property. 

### II. CONCLUSION Defendants' motions to dismiss the Complaint shouldbe denied. Complainants have demonstrated thatthey engaged in good faith negotiations with Defendants over a six month period. In addition, Complainants have been substantially affected by Defendants' violation of the Airport SponsorAssurances, includingthe ultimate loss oftheir Hangar, which they will no longer be able to access after February 2023. Although Defendantshave attempted to whitewash their behavior and minimize Complainant's injuries, the facts showthat Defendants have continually and knowingly violated the Airport SponsorAssurances. Sincerely,

Adrian A. Miller

AAM

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Certificate ofService January 5, 2016 Page 5

I hereby certify that I have this day caused the foregoing reply to be served onthe following persons at the following addresses by first class mail, postage prepaid, with courtesy copies by electronic mail: BrianLilletvedt Bosch, Kuhr, Dugdale, Martin & Kaze, PLLP 335 Fourth Avenue P.O. Box 7152 Havre, Montana 59501 Attorney for City ofFort Benton blilletvedt@bkdlaw.org Mitchell A. Young MontanaAssociation ofCounties 2717 SkywayDrive Suite F Helena, Montana 59602 Attorney for Chouteau County, MT myoung@mtcounties.org

Dated this 5thday ofJanuary, 2016.

Adrian Miller

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